Constitutional Reflections: Council of State critical of ban on priority housing for permit holders

“‘Housing’ is at the top of the political agenda. This dossier will resurface repeatedly in the run-up to the elections. The problems with the housing supply are not limited to owner-occupied and regular rental housing. Social housing is also scarce, leading to ever-lengthening waiting times.”

The proposal

“Caretaker minister Keijzer wants to amend the distribution of scarce social housing through a revision of the Housing Act. The proposal (Act on New Rules Concerning the Housing of Permit Holders) involves an amendment to Article 12, paragraph 4 of the Housing Act 2014. In short, the proposal concerns a (gradual) ban on priority allocation for permit holders. Permit holders are asylum seekers who have been granted a residence permit, also known as status holders. At present, municipalities can grant priority for social housing to specific groups whose ‘need for housing is urgently required’, i.e. urgent cases. This includes, for example, informal carers and individuals residing in women’s shelters. The proposal singles out permit holders as the only group excluded from this priority scheme. All other urgent cases may still be eligible for priority, unless they are also permit holders.”

Negative advice from the Council of State

“The CoS has raised serious objections to the proposal and advised that it ‘should not be submitted to the House of Representatives’. This advice should prompt the Council of Ministers to reconsider the bill. The Rules of Procedure of the Council of Ministers stipulate that the consequences of an advisory opinion must be discussed if it contains ‘fundamental criticism of the substance’ of the proposal. The Council of Ministers may, however, disregard such advice, as the CoS’s opinion is not binding.

The CoS concludes that the ban is contrary to the constitutional right to equal treatment (Article 1 of the Constitution) in conjunction with the right to housing (Article 22(2) of the Constitution). Since permit holders, who face a disadvantaged position in the housing market and therefore typically belong to the urgent cases, are placed in an unequal position compared to most other housing seekers, a reasonable and objective justification must exist to single out one group of urgent cases from the priority scheme. According to the CoS, no such justification exists.

The CoS finds it implausible that the disadvantaged position of permit holders - such as later registration on waiting lists, weaker social networks, language barriers, and temporary shelter - will have been ‘normalised’ by the time the ban is expected to come into force on 1 July 2027. Furthermore, the CoS does not consider the government’s aim of ending positive discrimination and ‘treating like cases alike’ a sufficient justification for the ban. The CoS argues that the government overlooks the factual inequality between permit holders and most other housing seekers. As long as this factual inequality persists, removing the priority scheme for permit holders conflicts with the right to equal treatment guaranteed by, among others, Article 1 of the Constitution. This right implies that as long as permit holders face a disadvantaged starting position compared to most other housing seekers, that inequality must be compensated.”

If the proposal is adopted: What can the courts do?

“It is also worth considering the scenario in which the States General adopts the proposal, enters into force, and is subsequently challenged in court. Could the courts then reach the same conclusion as the CoS, namely that there has been a violation of the right to equal treatment?

Our view is that the courts could indeed reach the same conclusion, but by a different route. Article 120 of the Constitution prevents courts from reviewing legislation – including this proposal, should it become law – against the Constitution. Once a law has been passed by the States General, it can no longer be declared ‘unconstitutional’ by the courts. However, the route of international law remains available. Equal treatment is also enshrined in international treaties, as seen in Article 26 of the International Covenant on Civil and Political Rights and Article 14 of the European Convention on Human Rights. Based on Article 94 of the Constitution, the courts may review legislation against these treaty provisions.”