The Regulation of Shame: When Far-Right Ideas Become EU Return Law

Dr. Izabella Majcher, Independent Consultant

Photo credit: Shutterstock

 

*References to the Regulation's provisions reflect the agreed text at the time of writing and may change following legal-linguistic revision

Amid chants of "send them back" from some Members of the European Parliament, the Parliament adopted the EU Return Regulation on 17 June 2026 by 418 votes to 218, with 30 abstentions. Such a broad majority on legislation that would otherwise have been highly divisive was made possible by the European People's Party (EPP)'s alliance with far-right groups, breaking the political firewall traditionally maintained in several Member States. The vote drew criticism from NGOs, academics and journalists, and also prompted concern within the United Nations. Ahead of the vote, nearly 50 current and former international human rights experts issued a joint statement expressing their concerns. Following its adoption, the UN High Commissioner for Human Rights publicly expressed his deep regret.

The parliamentary vote marked the culmination of an exceptionally rapid legislative process. As announced in European Commission President Ursula von der Leyen's Political Guidelines for her second Commission, the Commission presented its proposal for a Return Regulation on 11 March 2025 (discussed here). The Council adopted its position on 8 December 2025 (discussed here), followed by the European Parliament's report on 26 March 2026 (discussed here). The subsequent interinstitutional negotiations progressed at an equal pace, culminating in the final trilogue on 1 June 2026. Once the text has undergone legal-linguistic revision, it will be published in the Official Journal of the European Union. The Regulation will become applicable one year later, replacing the Return Directive, although several provisions—including those on return hubs, preparations for the European Return Order form and readmission procedures—will apply immediately.

Given the political support from right-wing groups and the underlying objective of the proposal of increasing returns, it is unsurprising that the Regulation relies heavily on coercive measures while lowering safeguards across the board. What remains less clear is whether it will actually increase the number of returns, except perhaps at the expense of compliance with international and EU human rights standards. This blog highlights ten aspects of the Regulation that raise particularly serious human rights concerns before offering some concluding reflections.

 

1)    Return decisions and effective remedy

The Regulation introduces several changes that collectively weaken the assessment of the risk of refoulement. It allows return decisions either to omit the country of return or to designate several possible countries of return. The person need only be informed of the intended country of return sufficiently in advance of removal (Articles 7, 13 and 24). The Regulation also clarifies that Member States are not precluded from issuing a return decision where a hindrance to removal exists; where a risk of refoulement has been identified, removal to the country concerned must simply be postponed. Where the person indicates, or the authorities otherwise become aware, that removal would breach the principle of non-refoulement, the competent authorities must either refer the person to the appropriate procedure, including the asylum procedure, or assess the risk of refoulement themselves. In doing so, they may rely on or take into account any previous assessment of that risk. It is possible that the risk of refoulement is assessed by authorities issuing or enforcing a return decision.

This approach makes the right to an effective remedy all the more important. Compared with the Directive, the Regulation provides greater detail on the applicable standards (Article 26). It requires that the remedy provide for a full examination of both facts and points of law. Where material brought to the attention of the court or tribunal hearing the appeal, as supplemented or clarified through adversarial proceedings, indicates that the principle of non-refoulement may be at risk, the court or tribunal must verify compliance with the obligations arising from that principle. As regards the suspensive effect of appeals, the Regulation does not establish an automatic right to suspension. Instead, it clarifies that Member States must ensure, in full compliance with Article 47 of the Charter, that removal can be suspended before it is carried out (Article 28). Suspension may be granted upon request by the person concerned, unless national law also provides for suspension ex officio.

 

2)    Mutual recognition of return decisions

Mutual recognition of return decisions is presented as one of the Regulation's key innovations and as a part of the broader "common system for returns" (Article 42). In reality, however, the mechanism is neither new nor straightforward to implement. Under it, a Member State that apprehends a person who has already received a return decision in another Member State may recognise and enforce that decision instead of issuing a new one (Article 9). This is facilitated through a European Return Order—a standard form containing the main elements of the return decision—which is made available to Member States through the Schengen Information System. The mechanism itself is not new. It was already established by a 2001 Council Directive, although it appears to have been used only sparingly in practice. The Commission originally proposed making mutual recognition mandatory, but this approach did not receive the support of the co-legislators. As adopted, the mechanism therefore remains optional. Nevertheless, Member States are required to put in place preparatory measures, and the Commission may submit legislative proposals following an assessment to be carried out within two years of the Regulation becoming applicable. Recognising another Member State's return decision raises both practical and legal challenges. Since the grounds for lawful stay are not harmonised across the EU, a person may be in an irregular situation in one Member State but lawfully present in another. The enforcing Member State may therefore face litigation while also bearing the costs of removal and, where applicable, detention. More fundamentally, mutual recognition of return decisions and entry bans raises proportionality concerns because it exports the most restrictive national approaches across the Union, while no equivalent system exists for the mutual recognition of lawful residence statuses.

 

3)    Voluntary departure

The Regulation adopts a confusing approach to so-called voluntary departure. Under the Directive, Member States are required to grant a period for voluntary departure of between seven and thirty days, subject to three exceptions: where there is a risk of absconding, where an application for legal stay has been rejected as manifestly unfounded or fraudulent, or where the person poses a risk to public policy, public security or national security (Article 7). The Regulation removes this obligation and instead leaves Member States with a choice between granting a period for voluntary departure and requiring the person to leave immediately (Article 7). Moreover, where a period for voluntary departure is granted, it need no longer be at least seven days. These changes sit uneasily with the EU's broader approach to return, which has consistently favoured voluntary departure over forced removal and has invested considerable resources in assisted voluntary return and reintegration programmes. Indeed, the Regulation itself requires Member States to ensure the availability of return and reintegration programmes, which may be supported or financed by the EU. It further specifies that such programmes should provide a broad ranging assistance and incentives, including reintegration support (Article 46). Voluntary return is generally more conducive to a safe and dignified return and is also in the interest of Member States, given that forced removals are considerably more costly and complex to organise. Arguably, these amendments are intended primarily to signal a more coercive approach rather than to produce a significant change in practice. Even under the Directive, Member States are not required to grant a period for voluntary departure where there is a risk of absconding or concerns relating to public policy or security. Conversely, the Regulation still allows Member States to grant voluntary departure at their discretion, except for persons considered to pose security risks (see more on this category here).

 

4)    Duties and sanctions

The Regulation establishes an extensive—and at times overlapping—set of obligations for persons subject to return, raising concerns regarding legal certainty and proportionality. It introduces a general duty to cooperate (Article 21), encompassing more than a dozen specific obligations. These include appearing before third-country authorities for the issuance of travel documents or the verification of identity or nationality, and complying with third-country entry requirements, including health-related requirements. The list is open-ended, as it also incorporates obligations provided for under national law.

The Regulation also empowers Member States to impose various restrictive measures, including obligations to remain within a designated geographical area, reside at a specific address, or report periodically to those authorities (Article 23). Under international human rights law, these measures constitute restrictions on freedom of movement. Nevertheless, the Regulation does not require that they be necessary to achieve a legitimate objective. In addition, it introduces a further category of movement restrictions that may be imposed, implicitly, where there is a risk of absconding (Article 23c), including bail and electronic monitoring. Although labelled "alternatives to detention", these measures may also be imposed where detention itself would be unlawful—for example, after the maximum permissible period of detention has expired.

Failure to comply with some of these obligations may be treated as evidence of a risk of absconding, or it may directly justify detention. Other consequences include reductions in social allowances, financial penalties, extensions of entry bans and criminal sanctions, including imprisonment (Article 23b). In practice, almost any person subject to return could fail to comply with one or more of these numerous obligations, thereby exposing them to a cascade of restrictive measures and sanctions. The breadth of this regime falls short of the requirements of necessity and proportionality, leaving considerable scope for arbitrary application.

 

5)    Investigative measures

At the Council's initiative, the Regulation introduces a new category of so-called "investigative measures" (Article 23a). These measures authorise the authorities, without the person's consent, to search persons subject to return, their homes and other relevant premises, and to seize personal belongings, including electronic devices. The Regulation also permits the use of additional investigative measures provided for under national law. Searches of homes and other premises require either prior judicial authorisation or, where permitted under national law, an administrative order where the search is necessary, proportionate and duly justified by urgency. The Regulation specifies that investigative measures may be used where necessary, proportionate, and duly justified to ensure an effective return. It also requires that they respect fundamental rights and remain subject to the safeguards and remedies available under Union and national law. Nevertheless, the provision raises significant concerns in practice. It may facilitate police raids on homes, shelters and other premises accommodating or supporting people in an irregular situation, potentially relying on racial profiling and creating a climate of fear within migrant communities.

 

6)    Detention

The Regulation significantly expands the legal framework governing detention, both by broadening the grounds and by increasing its maximum duration (Article 29). Under the Directive, Member States may impose pre-removal detention on two grounds only: where there is a risk of absconding or where the person avoids or hampers the preparation of return (Article 15(1)). Unlike the Directive, the Regulation lays down detailed criteria for determining whether a person poses a risk of absconding (Article 21a). However, these criteria are drafted so broadly that most persons in an irregular situation are likely to satisfy at least one of them and, crucially, many bear little relation to the person's actual propensity to abscond. The Regulation establishes four criteria that give rise to a rebuttable presumption of a risk of absconding, including irregular entry into the territory. It further lists seven additional criteria—including the absence of a reliable address—and permits Member States to rely on criteria laid down in national law to assess the risk of absconding.

In addition to the two detention grounds contained in the Directive, the Regulation adds three further grounds. First, Member States may detain a person considered to pose a security risk, including a threat to public policy, public security, national security or any other security threat identified under national law. This broad ground blurs the distinction between administrative immigration detention and criminal detention. Given that immigration detention affords significantly fewer procedural safeguards than criminal detention, it should remain limited to grounds directly related to the enforcement of removal. Second, detention may be imposed in order to determine or verify a person's identity or nationality. This ground is particularly problematic because such procedures may take considerable time, for example, when a person is stateless, or their identity documents are not recognised. Moreover, detention may be imposed on this ground even in the absence of any risk of absconding. Third, a person may be detained for failing to comply with one of the Regulation's numerous cooperation obligations (discussed above), such as complying with carriers' travel requirements, fulfilling third countries' entry requirements, or complying with electronic monitoring requirements. Fourth, Member States may also rely on detention grounds established under their national law where these are considered necessary to ensure an effective return procedure. Leaving the determination of detention grounds to national law undermines the very objective of harmonising return-related measures across the EU.

The Regulation also dramatically extends the maximum permissible period of detention. Under the Directive, detention may last up to six months and may be extended by a further twelve months where the removal operation is delayed due to a lack of cooperation by the person concerned or the third country. Under the Regulation, the initial detention period may last up to 12 months and may then be extended by a further 12 months on the same grounds, as well as in "exceptional" circumstances provided for under national law. The resulting two-year period may be prolonged by an additional six months where there is a risk of absconding and one of three vaguely defined changes in circumstances gives rise to a reasonable prospect of removal. However, it is difficult to understand why a reasonable prospect of removal would emerge only after a person has already spent two years in detention. Such lengthy periods of detention are manifestly disproportionate and seriously undermine the fundamental right to liberty.

Finally, the Regulation weakens the safeguards requiring migrants to be detained in specialised detention facilities. This approach is at odds with the standards consistently advocated by the UN Working Group on Arbitrary Detention and the European Committee for the Prevention of Torture.

 

7)    Entry bans

An entry ban is a punitive measure that links return policy with border and visa policy by preventing a person from re-entering the EU through regular channels. The Regulation significantly expands the scope of this measure (Article 10). Under the Directive, an entry ban accompanies a return decision and is mandatory where no period for voluntary departure has been granted or where the person has failed to comply with that period (Article 11). The Regulation introduces the possibility of imposing an entry ban even in the absence of a prior return decision, where a person's irregular stay is detected during exit border checks or where they leave the territory before a return decision has been issued. This new possibility is both disproportionate and highly punitive, as it penalises individuals who are attempting to leave the territory. Moreover, where no formal decision is issued, a person may not even be aware that they are subject to an entry ban and may effectively be deprived of their rights of defence and to an effective remedy. Such an approach sits uneasily with the principles of good administration and legal certainty and creates a significant risk of arbitrary decision-making. The Regulation also doubles the maximum duration of entry bans in ordinary cases, from five to ten years, and allows them to be extended to twenty years where necessary to prevent re-entry. As under the Directive, the duration of an entry ban may nevertheless be reduced, or the ban withdrawn or suspended, in individual cases. In this context, the person's private and family life established in the Member States is a key consideration.

 

8)    Children

The Regulation introduces several safeguards for unaccompanied children, including the appointment of a guardian, the right to be heard during the return procedure and a review of detention every three months (Articles 20 and 33). At the same time, however, it weakens several of the protections currently provided under the Directive. These include removing schooling from the express grounds for extending the period for voluntary departure, reducing the entitlement to education in detention to the provision of "educational activities", and no longer requiring that assistance be provided to unaccompanied children before a return decision is issued. Crucially, almost all of the Regulation's new intrusive measures—including investigative measures and restrictions on freedom of movement (discussed above) —apply equally to children. Only unaccompanied children are exempt from removal to return hubs; families with children can be subject to this possibility. The Regulation's approach to detention is particularly concerning. Since the adoption of the Directive in 2008, international human rights standards have evolved considerably. The UN Committee on the Rights of the Child and the UN Committee on Migrant Workers, the UN Special Rapporteur on the Human Rights of Migrants, and the UN Working Group on Arbitrary Detention have all recognised that children should never be placed in immigration detention. Rather than reflecting this well-established standard, the Regulation substantially expands both the grounds for detention and its maximum duration, while failing to exclude children from its scope. On balance, the Regulation is likely to have a detrimental impact on children's rights.

 

9)    Alternatives to return

The Regulation largely ignores the reality that not every person in an irregular situation can be returned. Most notably, it removes the existing option to grant regular status rather than issue a return decision. Under Article 6(4) of the Directive, Member States may grant an autonomous residence permit on compassionate, humanitarian or other grounds to a person in an irregular situation. In such cases, no return decision is issued, or, where one has already been adopted, it must be withdrawn or suspended for the duration of the residence permit. As a result of this deletion, the Regulation no longer recognises any humanitarian or human rights-based exception to the obligation to issue a return decision for every person in an irregular situation. Granting regular status enables individuals to access socio-economic rights and justice, while reducing their vulnerability to exploitation. It is equally in the interest of Member States to ensure that people residing on their territory have a lawful status. Given that Member States already provide a range of humanitarian and compassionate residence permits, a genuinely common return system should also preserve avenues for regularisation, which are intrinsically linked to return policy.

 

10) Return hubs

One of the Regulation's most significant innovations is the possibility of removing a person to a third country with which they may have no prior connection—a so-called "return hub" (Article 17). This mechanism requires the Member State concerned to conclude an agreement or arrangement with the third country. Notably, that country is not required to satisfy the criteria applicable to safe third countries under the Asylum Procedure Regulation. Instead, the Regulation merely provides that it must respect international human rights standards and principles in accordance with international law, including the principle of non-refoulement. However, it does not specify who is responsible for assessing compliance with these requirements or by which criteria such an assessment should be conducted. Only unaccompanied children are exempt from transfer to return hubs. The concept has attracted interest among some Member States, with Rwanda, Uganda and Uzbekistan reportedly among the countries recently considered as potential locations for return hubs. The Italy–Albania Protocol has undoubtedly served as the model for this mechanism. Yet beyond the serious human rights concerns it raises, the Italian experience has also demonstrated the considerable financial and practical challenges of its implementation. Following several transfers blocked by Italian courts, the compatibility of the arrangement with EU law is yet to be decided by the Court of Justice of the European Union (CJEU) (see here and here). Return hubs have also been considered a form of externalisation of migration governance by the UN Special Rapporteur on the Human Rights of Migrants. The Rapporteur warned that they create a risk of violating the principle of non-refoulement, including chain refoulement, exposing individuals to arbitrary detention and undermining procedural safeguards. As the Rapporteur emphasised, States cannot outsource their human rights obligations and may remain internationally responsible for violations committed in the cooperating third country.

 

Concluding thoughts

During the negotiations on the Return Directive, a Latin American head of state famously described it as the "Directive of Shame" (Directiva de la Vergüenza). From the perspectives of human rights, proportionality, good faith and, indeed, common sense, the future Return Regulation may well deserve to be regarded as the EU's "Regulation of Shame". As the preceding analysis illustrates, the Regulation creates a significant risk of human rights violations, most notably breaches of the principle of non-refoulement—including chain refoulement—and the prohibition of arbitrary detention. It introduces a range of highly intrusive and coercive measures, even though they are part of administrative migration procedures concerning people who have committed no crime. The Regulation also raises serious concerns regarding legal certainty and the prohibition of arbitrariness by deferring to national law on core aspects of the return procedure, including the grounds for detention, the criteria for establishing a risk of absconding, restrictions on freedom of movement, investigative measures and the consequences of non-compliance. In doing so, it undermines one of its own stated objectives: the harmonisation of return rules across the EU. The Regulation is also unlikely to achieve its central policy objective of increasing the number of returns. There is little evidence that reducing opportunities for regularisation while expanding detention and entry bans will make return systems more effective. On the contrary, greater reliance on detention and reduced use of voluntary return are difficult to reconcile with considerations of financial efficiency, itself a guiding principle of EU law-making.

Reaching agreement on such a coercive text was made possible by Parliament's position. Unlike during the negotiations on the Return Directive between 2005 and 2008, the Parliament did not serve as a counterweight to the positions of the Commission and the Council. Whereas interinstitutional negotiations on the relatively short Directive lasted around nine months, agreement on the considerably longer Regulation was reached after only a handful of trilogues over approximately two months. During the negotiations on the Directive, Parliament was instrumental in preserving and strengthening a number of safeguards. By contrast, its position on the Regulation remained largely aligned with the Council's. The alliance between the EPP and far-right groups secured the necessary majority, but support also came from some centrist and liberal MEPs. This reflects a broader shift in the European political landscape, in which restrictive migration narratives have become increasingly mainstream.

With the Regulation now adopted, much will depend on its implementation and interpretation. National courts and the CJEU will have a crucial role in ensuring that its provisions are applied consistently with Member States' obligations under international law, EU law and domestic constitutional standards. Beyond litigation, financial oversight bodies may increasingly scrutinise expenditure on costly detention systems and return hubs. Given that the Commission's proposal was not accompanied by an impact assessment, independent research will be essential to evaluate whether the Regulation's coercive approach actually increases returns. Investigative journalism and advocacy will likewise remain indispensable in documenting its impact and challenging practices that undermine fundamental rights. Perhaps, ultimately, this legislation—shaped by ideas that only a few years ago remained largely confined to the political margins—will also serve as a reminder that the erosion of rights rarely remains limited to a single group. Once exceptions to fundamental guarantees become normalised, the boundaries of exclusion tend to expand, placing ever more people beyond the protection of the law.

A Dutch dangerous experiment in criminalizing compassion: How a parliamentary "slip-up" could create Europe's harshest migration law

 

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.