On November 10, 2014 the Decisions on the Merits were published for two Collective Complaints against The Netherlands. The first complaint was submitted by FEANTSA and deals with access criteria and availability of shelter for homeless people in the Netherlands. The second complaint was submitted by the Conference of European Churches and deals with access to shelter and basic amenities (water, food, clothing) for undocumented migrants. In both complaints the European Committee on Social Rights also issued an Immediate Measure for the first time in its history.

Access to emergency shelter in The Netherlands is problematic. This has to do with two factors that are based in law and policy. Because the Netherlands was faced with a large influx of migrants in the 1990s a law was implemented to limit access to government services for undocumented migrants. As a result, undocumented migrants are not eligible for emergency shelter. For persons who do not have a permit to remain in The Netherlands, the problem occurs in policy. There are 43 municipalities responsible for emergency shelter, which means there are also 43 different policies on access to emergency shelter. And rather than being inclusive, these policies are exclusionary.

Municipalities have indicated in their policies criteria on which eligibility for emergency shelter is based. These criteria look at rights of residence (nationality or lawful stay), age (over 23 years old), local connection, psychological profile (mental health problems, addiction, etc.), and social network (can you manage within your network of friends, family, etc.). Application of these criteria means that in practice it is easy to be excluded from receiving the help you need. Nationality proves problematic for (undocumented) migrants, including destitute EU citizens. Age proves problematic for adolescents. Local connection criteria are difficult to prove for migrants as well as anyone who has not resided in the area long enough (the minimum is two years). And if you do not exhibt psychological problems you are not eligible because the criteria are cumulative.

In itself it can be useful for government agencies to include in their policies the eligibility criteria. This should, however, not result in exclusion. And that is exactly what is happening in the Netherlands. The criteria are applied in an exclusionary manner. If you do not fulfill the criteria you are not eligible for shelter. Both the municipalities and the courts apply the criteria in the same way. The courts do not seem to want to intervene with the margin of appreciation that the municipalities have in creating and applying their local policies. This results in situations where everyone can see that a person needs help, but help is not provided because the person does not meet the criteria. This is a direct violation of the European Social Charter where ‘need’ is considered to be the decisive factor in the determination whether to help a person or not.

How the strict application of policy creates unwelcome exclusion can be seen in the following example. In May 2014 a woman came into my office. She was in her late twenties and some 20 weeks pregnant. She had recently been forced to leave her house by her ex-partner, who was also responsible for prostituting her. The woman had already tried to obtain an income and shelter for over a month. She had been denied both benefits and shelter. The municipality concerned had looked at all the options, but could not match her to the criteria. They concluded that the law and policy did not leave any options available. The woman was walking on the streets during daytime, and could, if she was lucky, obtain a bed in the night shelter. There she had to share a communal room with a male population most of whom were smokers and many were addicted to alcohol and drugs.

At 32 weeks into the pregnancy the first court hearing was conducted in this case. The court also concluded that the law and policy did not leave any room for maneuver. There was however willingness to look at the situation again. This resulted in two more hearings during which the municipality persisted the impossibilities in law and policy. The woman could not be in a regular shelter because she did not have psychological problems and did not have an addiction. A place in a women’s shelter was deemed unnecessary as she was not under threat by her ex-partner. A place in a family shelter was not possible for her yet, as her child had not been born. The court was able to break the deadlock by using discretion. The judge said to the municipality: “You and I know that we cannot let this woman live on the streets until she gives birth.” After the court issued an interim measure, the municipality found housing for the woman within a week. There are countless cases in which undocumented migrants are denied shelter because of their residence status, or lack thereof. The courts in The Netherlands are in support of the law that excludes undocumented migrants from government services. The law is deemed to be generally not in breach of human rights because it has a legitimate aim (limiting extension of unlawful residence). In a number of cases the courts have granted shelter to persons in need. Not on the basis of the European Social Charter, but rather on the right to private and family life as protected in Article 8 ECHR. The application of this “escape” is very narrow indeed as only persons with a severe medical condition and/or “desperate” situation are considered eligible on this ground. One such ground for desperate situations is (recognized) statelessness. Risk of sexual exploitation is not, neither is limited access to food and medication.

So what have the collective complaints accomplished? At the national level the responses are mixed. The government is maintaining the position that the decisions are not legally binding on the state and that the governments will wait until the resolutions are adopted by the Committee of Ministers (foreseen for spring 2015). Whatever the outcome of this resolution, it will not change the legal assessment of the Committee. It will still come down to the application of the decision by the courts. Parliamentarians from different factions have taken an interest in the outcome of the cases. This process is supported by the lobbying of the NGOs involved in the case and media interest in the topic. Without such attention it will be difficult to really achieve change. At the municipal level the decisions have been welcomed by almost all political parties. This is due to the fact that it is the municipalities who will be confronted with the (public order) problems if people are left to live in the streets. In a number of municipalities the municipal council has adopted resolutions urging the authorities to create shelter for those currently left out of the system. In the municipality of Eindhoven a policy has been adopted to include support services. The Association of Dutch Municipalities meanwhile is negotiating with the national government for money to provide shelter in accordance with the decisions. So far, no additional funds have been awarded. Despite these apparently positive trends, the decisions have not brought a solution for all. The courts have not yet applied the decision, either directly or indirectly. There are indications that the courts will be able to apply the decisions indirectly via the ECHR - which is what happened following the decision of the collective complaint of DCI v. the Netherlands. At least until the government created (Spartan style) family shelters in which (undocumented) children could be sheltered with their parents. It is likely a similar solution will be found here for the undocumented migrants. For the other categories, including EU citizens during the first three months of their stay, time will have to tell.