’'Don't look a gift horse in the mouth', K. Boele

We reproduce an interesting article by K. Boele, from the Utrecht University, Science Shop of Law analysing a case law emanating from the Dutch Supreme Court in the Netherlands, where a refugee has been denied the right to work due to the interpretation of the Court.

The author of this publication deplores the interpretation of the Court and analyses the content of this case law, in line with the international human rights norms, including the disposals of the Reception Conditions Directive contained in EU law. We have not been able to date this valuable article, which seems to date already, nor to find the X versus the Netherlands case from the Dutch Supreme Court.

The article is named ‘Don’t look a gift horse in the mouth’, by K. Boele from the Science Shop of Law, Economics and Governance of the Utrecht University (ISBN: 978-90-5213-192-4 prof. mr. I. Giesen and dr. A.C. Buyse) 

Summary

In the case of X vs. the Netherlands, X, a refugee from Iran, claimed damages for the loss of income due to the fact that the Dutch government had wrongfully denied her refugee status, thus preventing her from finding employment in the Netherlands. However, the Dutch Supreme Court did not grant damages for the loss of income resulting therefrom because the requirement of ‘relativity’ had not been satisfied. This condition requires that damage can only be compensated when the violated rule is aimed at protecting the interest that is harmed. The Dutch Supreme Court ruled that the right to work is solely a side-effect of the refugee status, which has the primary purpose of protecting the refugee from his/her home state. Therefore, lost income due to a wrongful denial of refugee status could not be compensated, since the refugee status was not aimed at protecting this side-effect and, therefore, the requirement of ‘relativity’ had not been fulfilled. 

International and European law

The question arises whether this judgment is in accordance with international, European and national law. It is evident that the interpretation of the right to work as merely a side-effect of refugee status is not in accordance with international law. International standards support the notion that the right to work is fundamental to the human dignity to which all are entitled. This notion implies that the right to work is as inherent in the status of a refugee as it is in the status of citizenship. In addition, article 17 of the Convention relating to the Status of Refugees explicitly guarantees refugees’ right to work. This right is intended to be immediately protected for those lawfully staying in a host state’s territory, including those granted refugee status. Furthermore, entitlement to the right of article 17 is not dependent on a government’s adjudication. These two aspects support the notion that the right to work is inherent in the refugee status.At the time of the case of X vs. the Netherlands, European law, on the other hand, did not provide any specific provision guaranteeing a right to work for refugees. However, the indirect interpretative effects of article 137 (1) (g) of the Treaty establishing the European Community in combination with international standards that formed the basis of European asylum law suggest the same interpretation as international law. In addition, article 11 of the Reception Directive and article 26 of the Qualification Directive directly provide for the right to work in cases similar to X vs. the Netherlands. Thus, at the time of X vs. the Netherlands European law implicitly confirmed international law’s interpretation of the right to work as being inherent in the refugee status. Currently, the provisions of European asylum law explicitly support this conclusion.Besides the fact that international and European law provide that the right to work is inherent to refugee status, the question arises whether X was denied an effective remedy. While X could possibly resort to article 6 in combination with article 13 of the European Convention on Human Rights, few other international provisions can form the basis of a claim to an effective remedy for X. However, the right to an effective remedy is explicitly recognized as a principle of the European legal order. Thus, X could have claimed that the Netherlands had denied her this right as safeguarded by European law.National lawAt the national level tendencies to favour the side-effect interpretation are associated with the trend of a restrictive migration policy and the fact that a notation by the Minister of Justice is required before access to the labour market is granted. However, several arguments contrary to the side-effect approach can be found in Dutch asylum law. The restrictive migration policy was not intended to negatively affect the rights of refugees. In addition, the notation required by the Minister of Justice only fulfills an administrative function. This notation (which is automatically received and does not require any additional conditions) and the residence permit for an unlimited time are united in one document - simultaneously granting both rights. Most important, however, is the fact that the Dutch legislature chose to permanently exempt lawfully staying refugees from the conditions of the Wet arbeid vreemdelingen (Act for the Employment of Aliens) in order to allow them free access to the labour market. Therefore, the right to work appears to form an integral part of the refugee status for refugees holding an unlimited residence permit pursuant to article 28 of the Vreemdelingenwet 2000 (Aliens Act). In addition, since the Dutch legal system must act in accordance with international and European law, the Dutch Supreme Court is required to interpret refugee status as aiming to protect the refugee, which includes protection for the right to work.

Answers to research questions 
 To conclude, the judgment of the Dutch Supreme Court is not in accordance with international, European and national law with regard to refugees’ right to work when it interpreted this right to be merely a side-effect of the refugee status, therefore concluding that the requirement of ‘relativity’ had not been satisfied. In addition, the Dutch Supreme Court disregarded the legal boundaries of the requirement of ‘relativity’ by interpreting the scope of this requirement too extensively and attaching undue weight to policy considerations. Since this judgment represents the most politically desirable outcome and is used as a precedent leading to a consistent denial of compensation in similar cases, it is unfortunately unlikely that the Dutch legislature or judiciary will step in to correct the implications of this decision. In addition, international mechanisms are not sufficiently equipped to criticize a specific nationalcourt decision and to force the Netherlands to fulfill its international obligations. In the future, however, the European asylum directives can hopefully provide an outcome. Claimants, such as X, will be able to base their claims directly on the European provisions. However, for X the only route would be to base her claim on the right to an effective remedy that could potentially be violated by the decision of the Dutch Supreme Court.Compensation for the wrongful denial of refugee status was not granted, which in essence meant a denial of the refugee’s fundamental right to work. National legal requirements obstructed the realization of this human right contrary to international, European and its own national provisions. A refugee is not only entitled to protection against his/her home state, but is also entitled to access the labour market of his/her host country. In addition, a refugee is not only entitled to have the wrongful denial of refugee status rectified, but is also entitled to compensation for the harm suffered as a result of this wrongful conduct by the state. Consequently, a refugee does not need to be satisfied with the message: ‘Don’t look a gift horse in the mouth.’ 

Requirement of ‘relativity’        

The question arises to what extent these conclusions reached under international, European and national law influence the requirement of ‘relativity’. The theoretical legal framework provides that the scope of protection of a norm is established according to the aim and purpose of that norm. Thus, a teleological interpretation method is used including objective and subjective factors to establish what interest the rule aims to serve. In addition, currently a broad interpretation method is used with respect to state liability, allowing the consideration of other factors and circumstances. However, the emphasis remains on the legal text and the legislature’s intention. In this respect the conclusions reached under international, European and national law on the relationship between the right to work and refugee status provide the following outcome. In the case of X vs. the Netherlands the violated norm - article 28 of the Vreemdelingenwet 2000 - is a guarantee norm that aims to protect X (as the holder of the residence permit) from this type of damage (lost income). However, the Dutch Supreme Court determined that the rule is not aimed at protecting this type of damage (lost income). While the reasoning does not provide sufficient and legally valid support for this ruling, it appears that the political considerations of portraying a restrictive migration policy and safeguarding the Dutch treasury have set aside the legal theoretical framework. Thus, the Dutch Supreme Court overstepped the boundaries of the requirement of ‘relativity’.