Heavily redacted memo: Officials do not think Cabinet can simply declare asylum “crisis”

The Cabinet cannot declare that the asylum situation in the Netherlands is a crisis so that they can unilaterally enact emergency measures to tighten asylum policy, according to top officials at the the Ministry of the Interior and Kingdom Relations. They advised their minister against such an attempt “under the current circumstances,” according to heavily-redacted documents that the Cabinet shared with the Tweede Kamer, the lower house of Parliament.

Opposition parties responded angrily because at least 20 of the 69 pages were almost fully blacked out, as well as many other sections. “This can’t be taken seriously, can it? Just look at this: nothing but black!” said GroenLinks-PvdA leader Frans Timmermans. Eventually, Prime Minister Dick Schoof relented, and said unredacted documents will be sent to Parliament.

The government’s proposed route to intervene in asylum policy through state emergency law is “democratically and constitutionally unacceptable,” according to one part of the advisory memo from the Interior Ministry advisors which was still legible. Various departments advised the government to abandon the plans.

The document was shared under protest after parliamentarians were insistent that the Cabinet provide official internal advisory memos about the Cabinet’s intent to implement an emergency procedure so it can sidestep established law without Parliamentary review regarding the reception of asylum seekers. It is precisely this.

“Working outside of parliament is only possible in very urgent emergency situations, and there is no justification for this,” officials from the Constitutional Affairs and Legislation Directorate told Judith Uitermark, the Minister of the Interior. “The motivation for this is lacking” and “in that case, the use of State emergency law is not democratically and constitutionally acceptable.”

Officials from the Ministry of Justice also stressed their doubts out loud and pointed out “emphatically that it will not be easy to arrive at a legally tenable justification” for the emergency measure. This “because it is doubtful that there are currently exceptional circumstances that require activation” of national emergency rules.

In another document, civil servants advised using the emergency procedure to have a law debated and voted on by both Houses of Parliament, as opposed to the use of Cabinet-level emergency powers, which the Cabinet is currently advocating. In the document, civil servants wrote that “unpredictable, uncontrollable and external factors or events” are needed to justify emergency legislation.

It is unclear who wrote that statement, and from which ministry those advisors represent, due to sections which were blacked out. “Developments that have been going on for years, and when no unexpected major new developments have occurred this year, are generally not arguments for using emergency powers but rather for ordinary policy changes.”

Reference was also made to the statements of both the Council of State and the Tweede Kamer that the State emergency law “cannot be used to solve structural problems in regular asylum reception.”

“I just thought there was something wrong with my phone,” said an agitated Rob Jetten, the D66 leader win a first response to the redacted document. “A sincere question: what debate do you want to have with us? This feels like contempt for the Tweede Kamer.”

A short time later, Schoof promised to send the uncensored versions of the documents after all, but he called the step "very unusual." This will specifically include the advisory documents from the Ministry of Asylum and Migration.

Schoof strongly denied that the Cabinet had tried to withhold information by blacking out entire pages and sections, but that the point is that decisions still have to be made about the asylum emergency declaration, and the applicable law. "We have gathered the information we have found and provided it. We have not exercised any restraint, otherwise we would have done it differently," Schoof said in response to the harsh criticism from the broad political opposition. He said he wanted to "convince" the Tweede Kamer of the Cabinet's openness by providing the blacked-out versions of the documents.

He did warn that "it is very unusual. I actually think it is unprecedented." Schoof also said he thinks that the debate will be "extremely strange," because it concerns a decision that theCabinet has yet to take. He pointed out that it concerns draft documents and notes from civil servants that "have not yet been discussed in any way by ministers."