Criminalising illegality ignores social reality

A criminal law approach

In the documentary, Kox explains: "The plan is that people who are not allowed to be here will soon be criminally liable merely for their presence in the Netherlands. They could face up to six months in prison and a second-category fine." This marks a fundamental shift: irregular stay, which has been dealt with under administrative law until now, would become part of criminal law. According to Kox, this raises significant questions about feasibility and enforceability: "The question is how realistic it is to criminalise irregular stay through criminal law, given that our prisons are already overloaded and prisoners have to be released early due to lack of space." The police, she adds, also doubt the new law's practicality: "They are concerned about its enforceability." The Association of Dutch Municipalities (VNG) has also voiced opposition, fearing the law will place additional strain on an already overburdened system, leaving local authorities to deal with the consequences.

That the House of Representatives nevertheless approved the proposal despite these uncertainties, Kox finds remarkable: "The entire process shocked me. This is a highly intrusive law, yet the House of Representatives voted for something they did not fully understand." The RvS also described the legislative process as "careless" in its advisory opinion.

Children paying the price

In the documentary, Kox also reflects on the situation of undocumented children living in the Netherlands: "We used to have a regulation that granted residence rights to children who were rooted here - that is, who had lived in the Netherlands continuously for five years. That regulation was abolished, but the children are still here."

Kox continues: "It is an extremely stressful situation for children because they live in constant fear: 'Will I be deported today?'" Recalling her fieldwork, Kox notes: "In family accommodation centres, I met children who had been toilet-trained for years but started wetting their beds again, had behavioural problems, and struggled at school. These children did not choose this situation; they are placed in it."

It remains unclear how the new law will treat this group. While minors themselves would not be criminally liable, their parents would. The current proposal does not specify how such cases should be handled, leaving the impact on children uncertain.

Criminalising compassion?

Following the adoption of the amendment, members of the House of Representatives raised many questions. One key concern was that not only undocumented migrants but also those who assist them could face prosecution. The amendment failed to clarify the extent of criminal liability. Would even offering a 'bowl of soup' to an undocumented migrant be punishable? To clarify this, Minister Van Weel requested advice from the RvS on whether humanitarian or compassionate assistance could constitute aiding and abetting and thus be criminally prosecutable.

The RvS concluded that even limited assistance - such as offering a meal or temporary shelter - could indeed lead to criminal liability. More sustained forms of help could amount to co-perpetration (medeplegen). Only in exceptional circumstances, the RvS noted, could aid workers invoke a defence excluding punishment.

Critical advice

To avoid automatically criminalising humanitarian workers, the RvS outlined several alternatives. The government could, for example, remove the offence of irregular stay from the bill entirely. If the goal was to criminalise stay but not assistance, it could instead classify the offence as a minor infraction rather than a crime, or explicitly exempt humanitarian aid from liability.

Kox interprets the RvS’ advice as a clear warning: "The RvS rightly points out that the legislative process has been careless. There has been no substantive debate in Parliament on the criminalisation of irregular stay or its consequences for helpers. The scope and implications of the amendment were unclear, yet a majority still voted in favour." Kox stresses that a careful legislative process requires substantive discussion before a vote, especially on such far-reaching issues. The RvS echoed this in its advice. Following the RvS’ criticism, Minister Van Weel revised the bill to state that only the person unlawfully residing in the Netherlands would be punishable, thus excluding humanitarian assistance from prosecution.

However, Kox notes that little attention has been paid to the broader consequences of criminalisation itself: "The RvS barely addresses the implications of criminalising irregular stay per se. That is understandable, since the minister did not ask for advice on that point, but it means the issue itself is largely being ignored." She warns that this neglect is dangerous: "Research and practical experience show that criminalising irregular stay itself is problematic. That is why a broad coalition - from inspection services to police, from municipalities to NGOs, from doctors to trade unions - has spoken out against the amendment."

A bowl of soup is no longer a crime

In response to the RvS’ advice, Minister Van Weel has now submitted a revised bill to Parliament. Since it proved unworkable to criminalise only non-humanitarian forms of aid, he proposes to exempt all humanitarian assistance, from offering a bowl of soup to providing long-term shelter. Only the irregular stay itself remains a criminal offence. With the amended bill, Van Weel aims to increase the chances that the Emergency Asylum Measures Act will be passed before the elections, now that several political parties have turned against the criminalisation of humanitarian assistance - parties whose support he needs to secure a majority in both the House of Representatives and the Senate.

In Joris and the Undocumented, Kox remarks that a tough approach does not automatically produce the desired outcomes: "Many parties want to show that they are tough on migration. It sounds strong, but the consequences for the people affected and for society are enormous, while it does not necessarily lead to more returns." She adds that honesty and clear communication are often more effective than deterrence: "People experience fairness as more legitimate and are more willing to cooperate with departure procedures." For Kox, it is puzzling that politicians continue to focus on deterrence, despite research and practice showing that humane and transparent approaches achieve better results.

Academic criticism of criminalising illegality

On Friday, 26 September 2025, twenty-one researchers from the Dutch Research Collective on Undocumented Migrants (OnderzoeksCollectief Ongedocumenteerden Nederland, abbreviation OCON), including Kox, submitted a letter during the public consultation on the novelle amending the criminalisation of irregular stay. They warned that the measure adds no value to existing policy: immigration detention is already possible and has a limited effect in encouraging return. They also argued that implementation is unrealistic, citing police fears of additional workload, overcrowded prisons, and the courts' struggles with the expected rise in cases.

According to OCON, criminalisation will have severe negative effects. Undocumented migrants will be less likely to see a doctor, report abuses, or register their children at school. Municipalities anticipate an increase in homelessness and social problems. The researchers stressed that the measure violates fundamental human rights, conflicts with international treaties and the principle of proportionality, and urged the government to abandon criminalisation altogether. The coming months will reveal how The Hague shapes its asylum policy and whether their call will be heeded.