On matters concerning migration law, the Administrative Jurisdiction Division of the Council of State – the highest general administrative court in the Netherlands – usually sides with the Dutch state rather than the alien. This appears to be the outcome of recent research conducted by T.P. Spijkerboer, a prominent migration law professor at the VU University Amsterdam who has evaluated 638 judgments of the highest general administrative court dating from 2010 and 2011. According to Spijkerboer, with regard to migration law, this court doesn’t act as a guardian of fundamental rights and has, in recent years, increasingly diminished its own role in relation to the Dutch government. The court, for instance, lets the state – in this case the State Secretary – determine the credibility of claims made by aliens on how they fled. Spijkerboer cannot say whether or not aliens have unjustifiably been deported because of this. However, in his opinion the court has simply not looked into matters thoroughly enough.

In a reaction to the criticism, H.G. Lubberdink, chairman of the Aliens Chamber of the Administrative Jurisdiction Division of the Council of State, declares that fundamental rights do in fact play a prominent role in reviewing the implementation of aliens policy by the Dutch state. This, according to him, allegedly follows from the recent case law by the Council of State regarding Eritreans, Uyghurs, homosexuals, Christians and Yezidis from Iraq, on the basis of which the State Secretary had to adjust his policies. Lubberdink doesn’t share the view that the highest general administrative court has increasingly diminished its own role in favor of that of the Dutch state. He asserts, for example, that the Council of State issues preliminary questions to the European Court of Justice in Luxembourg on a regular basis and that, in important files, it has set demonstrable limits to the implementation of alien policy by the State Secretary.

According to Spijkerboer, the fact that the highest administrative court takes a very unusual attitude pertaining to migration law is something to be worried about. The criticism by lower courts and scientists directed at the Council of State is remarkably sharp. There is a legislative proposal currently pending in the House of Representatives which ought to replace the marginal assessment that the administrative court has to carry out with a substantive assessment, on the basis of which the role of the (highest) administrative court in relation to the Dutch state should again grow. If the amendment of the law is adopted, it’s still questionable whether the Administrative Jurisdiction Division will adhere to it. It would not be the first time it doesn’t act in accordance with a change in the law.