The illegal residence of foreign nationals is now a criminal offence

Upon recommendation by State Secretary Teeven of Security and Justice, the Council of Ministers has agreed to submit a proposal to the House of Representatives to amend the Aliens Act in such a way that foreign nationals who reside illegally in the Netherlands are guilty of a criminal offence. Foreign nationals who reside in the Netherlands illegally commit a criminal offence that is subject to the sanction of a fine. Imprisonment for nonpayment of a fine is possible if the fine is not paid.

Foreign nationals who are fined twice (or more often) because they reside illegally in the Netherlands risk a severe entry ban. The term of a severe entry ban is at most five years. 

Making illegal residence in the Netherlands liable to punishment means that it becomes less attractive to do so. This has a deterrent effect. Moreover, it gives a clear signal to foreign nationals who reside in the Netherlands illegally: from now on they are committing a criminal offence. 

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 does not apply.

Persons who aid illegal foreign nationals for humanitarian reasons will not be guilty of an offence. Employers and malafide landlords who employ or offer accommodation to illegal foreign nationals will remain liable to punishment. They will be dealt with more severely.

First and foremost, foreign nationals who reside here illegally have to leave, preferably voluntarily, but if necessary will undergo forced (repatriation). Criminalising illegal residence may not lead to delays in or obstacles to said departure. In other words: departure prevails over punishment.

The European Court of Justice determined on 6 December 2012 (Sagor judgment) that the EU Member States are competent to criminalise illegal residence subject to the sanction of a fine. Imprisonment for nonpayment of a fine is also permitted, according to the Court, provided that it is guaranteed that this punishment is cancelled as soon as the foreign national can be removed. The legislative proposal contains such a provision and therefore complies with the conditions imposed by the highest European court on the criminalisation of illegal residence.