Residing illegally in NL to be made a criminal offence

04 January 2013, by Carly Blair

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Foreign nationals who reside illegally in the Netherlands will soon be considered guilty of a criminal offence and subject to a hefty fine, as recently announced by the Dutch Council of Ministers.

Those who are caught living here illegally will be given a set time limit to leave the country voluntarily. If they fail to leave within the time limit, they will be committing a criminal offence and will be subject to a fine (currently listed as 3.800 euros here).

Those who are fined may be imprisoned if they fail to pay, and those who are fined twice (or more) risk a severe entry ban. A severe entry ban may last for up to five years.

Though voluntary departure is preferred, forced deportation may be used if necessary. Departure is preferable to punishment, so illegal residence will not be criminalised in such a way that it delays or impedes departure.

The criminalisation applies exclusively to adult foreign nationals. If the foreign national still has a term for voluntary departure (at most 28 days), the criminalisation will not apply.

Assisting illegal foreign nationals for humanitarian reasons will not be an offence, but employers and landlords who work with illegal foreign nationals will remain liable to punishment and will be dealt with more severely.

In December 2012, the European Court of Justice determined in the Sagor judgment that EU Member States are permitted to criminalise illegal residence and to impose a fine as punishment.

Imprisonment for non-payment of a fine is also permitted, according to the Court, as long as it is guaranteed that this punishment is cancelled as soon as the foreign national can be removed.

The Council of Ministers' proposal is based on the Court of Justice's decision. The Council asserts that making illegal residence in the Netherlands a punishable offence will send a clear message to illegal residents and will deter additional people from attempting to live here illegally.