Huub Verbaten, Research Fellow at the Clingendael Institute
Photo credit: Markus Bernet, via Wikimedia
commons
On the evening of
July 3, 2025, as Dutch parliamentarians prepared to vote on what could become
some of Europe's most restrictive asylum laws, NSC MP Diederik Boomsma posed a question
that cut to the heart of a dangerous policy experiment. Would offering a
"bowl of soup" to someone without legal papers now be a criminal
offense?
The question wasn't
rhetorical. Just days earlier, a last-minute amendment by Geert Wilders'
far-right PVV had passed through what opposition parties later called a
"slip-up" in parliamentary procedure. The amendment didn't just
criminalize being undocumented in the Netherland, it also made helping
undocumented people a punishable offense. Suddenly, the simple act of human
kindness that Boomsma described could land someone in jail.
Justice Minister
David van Weel's initial response was telling: "Illegal is illegal. The
law, is the law." But when pressed again later that evening, he
backtracked, saying the criminalization clause wouldn't take immediate effect
and would need assessment by the Council of State. The next day, Deputy
Minister Thierry Aartsen offered
a more pointed critique: "There should be no soup police."
This exchange
encapsulates something profound about the moment we're witnessing in European
migration policy. What began as political theater, a way for parties to signal toughness
on immigration, has evolved into something more dangerous: the systematic criminalization
of both vulnerability and compassion. The Netherlands, long seen as a pragmatic,
tolerant society, is conducting an experiment in governance through criminalization
that could reshape not just migration policy, but the very nature of civil society.
The mechanics of
a political accident
To understand how
the Netherlands arrived at this point, you need to understand the chaotic final
days of the parliamentary session that ended July 3, 2025. What unfolded was less
deliberate policymaking than political accident, resulting in a series of
miscalculations and missed opportunities that produced legislation even its
supporters seemed uncomfortable defending.
The story begins
with the collapse of the four-party coalition government just one month earlier.
Migration had been the breaking point. Geert Wilders, whose PVV party led the coalition,
pulled the plug in June, claiming his partners were moving too slowly on promised
migration restrictions. The irony was palpable: Wilders destroyed his own government
over the very issue he'd finally gained power to address.
The criminalization
amendment emerged from this toxic environment. Originally, the asylum
legislation focused on reducing temporary residency permits from five to three years,
suspending new permanent residency permits, and restricting family
reunification.
These were
significant changes, but they operated within existing legal frameworks. The PVV
amendment changed everything. When the vote came on July 3, the numbers tell
the story of a deeply divided parliament. The main asylum bill passed 95 to 55
MP votes, a comfortable margin that reflected broad support for tighter
restrictions. But the criminalization amendment passed much more narrowly, and
only because several opposition MPs were absent during the crucial vote. It
was, in the words of multiple observers, a "slip-up" that produced
one of Europe's harshest migration laws.
The Christian
Democrats, who had initially supported the broader asylum package, immediately
withdrew their backing once the criminalization clause was added. This wasn't careful
policymaking. It was political improvisation under pressure, with consequences
that extend far beyond the immediate parliamentary arithmetic.
The evidence against
criminalization
The Dutch
experiment in criminalizing illegal residence isn't happening in a vacuum.
Other European countries have tried similar approaches, and the results offer a
sobering preview of what the Netherlands can expect. The evidence is clear (see
here
and here):
criminalization doesn't reduce irregular migration, but it does create a host
of new problems.
Start with the
basic premise underlying the Dutch legislation that making illegal residence a
crime will deter people from coming or staying. Research (here
and here) from
the Netherlands' own Research and Documentation Centre (WODC) has repeatedly
debunked the assumption that illegality and criminality go hand in hand. A recent
German study reached similar conclusions, finding no evidence that
immigration increases crime rates. Migrants are primarily driven
by safety, prospects, and family, not by policy measures. The deterrence theory,
appealing as it might sound to politicians, simply doesn't hold up under
scrutiny.
The international
evidence is even more damning. Belgium offers perhaps the most instructive
comparison. Since 1980 - 45 years ago - Belgium has maintained criminal penalties
for illegal residence, with fines up to 200 euros and prison sentences up to
three months. The result? Belgium currently hosts an estimated 112,000
undocumented residents (see here
and here),
more than double the highest estimates for the Netherlands (23,000 to 58,000).
If criminalization were an effective deterrent, Belgium should have far fewer
undocumented residents, not far more.
Germany has taken a
different approach that highlights the contradictions in criminalization strategies.
Through its Duldung (toleration) system, Germany provides temporary legal status
to people who cannot be deported. Between 2015 and 2020, Germany
issued nearly 660,000 residence permits to people who had previously been
living illegally in the country. Rather than criminalizing these individuals,
Germany regularized their status, reducing the undocumented population from
300,000 in 2022 to 240,000 in 2023.
Italy provides the
starkest example of criminalization's failures. Since 1998, Italy has maintained
criminal penalties for illegal residence, with fines reaching 10,000 euros and mandatory
deportation orders. Yet Italian courts have repeatedly rejected the harshest applications
of these laws (see here
and here).
In 2023, it was determined that a protection permit (protezione speciale) may
not be automatically denied without an individual assessment. Meanwhile, the
informal economy grew, and with it, the vulnerability of undocumented individuals.
Since 2020, the number of detected irregular migrants has increased nearly
tenfold, from fewer than 23,000 to more than 195,000 in 2023 (see here
and here).
The paradox is stark: the stricter the policy, the larger the population it
fails to control.
What is criminalized
in one European country can offer protection in another. While the Netherlands
seeks to criminalize illegal stay, countries like Italy and Germany have
humanitarian exceptions: protezione speciale, Duldung. The result? Two
people in exactly the same situation can face completely different outcomes,
purely depending on where they are.
These differences
are not minor legal technicalities because they touch on something fundamental:
the fairness of European migration policy. How do you explain that someone in
Germany might receive a Duldung for policy-related or personal
reasons, while that same person would be considered a criminal in the
Netherlands?
Systems under
breaking point
The Dutch
criminalization experiment arrives at a particularly unfortunate moment: when the
country's justice system is already stretched beyond capacity. The Netherlands'
justice system is currently in crisis. Prison overcrowding has become so severe
that the government recently implemented early release programs for convicted
criminals to free up cell space. Into this strained system, the criminalization
amendment would inject thousands of new cases annually.
The Association of
Dutch Municipalities (VNG) has been particularly vocal about the implementation
challenges. In their assessment, the legislation creates an impossible situation:
municipalities are legally required to provide basic services to vulnerable populations,
but the new law would criminalize providing those very services. As VNG chairperson
Sharon Dijksma put
it, "Municipalities will soon have to break one law in order to comply
with another law."
Police leadership
opposes Minister Van Weel’s legislation (see here
and here):
'Not every illegal alien is a nuisance' and 'When providing assistance to
someone who is in the country illegally, the police would actually be in
violation. This is an undesirable situation.'
The system strain
isn't limited to formal institutions. Civil society organizations that have provided
humanitarian assistance for decades suddenly find themselves in legal jeopardy.
Churches offering sanctuary, NGOs providing food and shelter, even individual
citizens helping neighbors could face criminal prosecution.
The logic of
political theatre
If criminalization
doesn't work as policy, why does it persist as politics? The answer reveals something
uncomfortable about contemporary democratic governance: the gap between what
sounds effective and what actually works has become a chasm that politicians
exploit rather than bridge.
The Dutch criminalization
amendment serves primarily as what political scientists call "symbolic
legislation”, laws designed more to send messages than to solve problems. The message
is clear: we take illegal immigration seriously enough to make it a crime. The audience
isn't primarily migrants, who research shows are rarely deterred by such
policies. The audience is voters who want to see their representatives
"doing something" about immigration.
This dynamic isn't
new in Dutch politics. The current proposal represents the third major attempt
to criminalize illegal residence in the past two decades. Each time, the same pattern
emerges: political pressure builds for "tough" action on migration,
criminalization is proposed as a solution, experts warn about practical problems
and limited effectiveness, and the proposal either dies or gets watered down.
The current version broke this cycle not because the underlying problems were
solved, but because political circumstances aligned to push it through despite
expert opposition.
The criminalization
approach also serves another political function: it shifts responsibility away
from government failure. If the Netherlands cannot effectively manage migration
through existing legal and administrative tools, criminalizing the problem
makes it someone else's responsibility e.g. police, prosecutors, judges. When
these institutions inevitably struggle with implementation, politicians can
blame them for being "soft" rather than acknowledging the inadequacy
of the policy itself.
When compassion
becomes criminal
The most profound
impact of the Dutch criminalization experiment may not be on migration patterns,
which research suggests will remain largely unchanged, but on the fabric of
civil society itself. When basic human compassion becomes potentially criminal,
the effects ripple far beyond the immediate targets of the legislation.
Consider the
position of healthcare providers who regularly treat undocumented patients. Under
the new legislation, providing medical care to someone without legal status
could potentially constitute "assistance" to illegal residence. The
law contains no explicit medical exemption, leaving healthcare providers in an
impossible position: violate their professional oath to "do no harm,"
or risk criminal prosecution for helping vulnerable patients.
The Dutch
legislation creates what legal scholars call "overcriminalization",
the expansion of criminal law into areas traditionally governed by
administrative procedures or moral obligations. When criminal penalties attach
to activities that most people consider morally neutral or even praiseworthy,
the law loses legitimacy and becomes harder to enforce fairly.
The European Court
of Justice has recognized this complexity in a series of recent rulings that
establish minimum standards for human dignity even in restrictive migration
regimes. The Jawo
decision established that Dublin transfers cannot leave asylum seekers destitute.
Haqbin
confirmed that even problematic asylum seekers retain rights to basic accommodation.
The ruling in Changu
underlines that Member States may be strict in their return policies, but they
remain responsible for the basic needs of people who cannot (yet) be deported.
The Court recently
ruled that illegal travel into EU by a third-country national with minors
does not constitute a criminal offence when claiming international protection. Therefore,
the Italian law contravenes EU law. These rulings reflect a fundamental
principle: human dignity is not conditional on legal status.
The European
Commission made
a proposal at the end of 2023 for a new directive aimed at clarifying the
approach to assisting with illegal residence in the EU. The Netherlands supports
the proposal but at the same time emphasized as recently as March 2024 that
humanitarian aid must not be criminalized. The Meijers
Committee warns that the directive risks criminalizing humanitarian aid and
urges the EU to amend vague provisions allowing Member States too much
discretion in prosecutions.
An increasing
number of aid workers have appeared in court across several Member States for
assisting undocumented individuals. According to a recent
report by the PICUM network, at least 142 people in Europe were prosecuted
in 2024 for helping migrants, including 62 in Greece, 29 in Italy, 17 in
Poland, and 17 in France.
The choice ahead
The Dutch
criminalization experiment now moves to its final act. When the upper house reconvenes
after the summer recess, senators will face a choice that extends far beyond migration
policy. They will decide whether the Netherlands embraces governance through criminalization
or returns to its tradition of pragmatic, evidence-based policymaking.
The vote is
expected to be extremely close. The Christian Democrats, who withdrew support in
the lower house over the criminalization amendment, hold enough seats in the
upper chamber to block the legislation if they maintain their opposition. This
means the fate of one of Europe's harshest migration laws may come down to a
handful of votes from politicians who weren't even directly elected on this
issue.
The choice facing
Dutch senators reflects a broader tension in contemporary democracy between
responsive governance and responsible governance. Responsive governance gives people
what they want, even when what they want is based on incomplete information or emotional
reactions. Responsible governance sometimes requires leaders to resist popular pressure
in favor of policies that actually work.
The criminalization
amendment represents responsive governance at its worst, a policy that sounds
tough but creates more problems than it solves. Responsible governance would acknowledge
the legitimate concerns about migration while pursuing solutions that actually
address those concerns rather than simply expressing frustration about them.
What would
responsible migration governance look like? It would start with honest assessment
of what's actually possible. Most undocumented residents in the Netherlands cannot
be deported, either because their countries of origin won't accept them or
because deportation would violate international law. Criminalizing these people
doesn't make deportation more feasible; it just makes their lives more
precarious.
The question that
began this analysis - whether offering a bowl of soup to someone without papers
should be a crime - captures the essence of this choice. Societies that
criminalize basic human compassion don't become more secure or more prosperous.
They become less humane and ultimately less democratic.
The Netherlands
still has time to choose a different path. The question is whether its democratic
institutions are strong enough to take it.