Advice: Balancing public order policy
The Advisory Committee on Migration Affairs (ACVZ) was recently prompted to reassess public order policy by three developments in the area of national and European public order policy.
Based on the research carried out, the ACVZ recommends the following legislative amendments:
1. Provide a legal basis for ex nunc present threat assessments by adjusting the sixth paragraph of Article 3.86 of the Dutch Aliens Decree.
2. Apply the EU personal conduct and present threat criterion across the full spectrum of immigration law. This will serve to assuage criticism on the perceived proportionality
and effectiveness of the sliding scale. Include a legal provision establishing that migrants will be deemed a threat to public order when posing a present threat to one of the fundamental interests of society.
3. Include a legal provision specifying that any application of the personal conduct and present threat benchmark or effort to balance individual interests should take account of
the EC Citizenship Directive guidelines and guiding principles of the European Court of Human Rights (ECHR) as well as the sliding scale. Elaborate these provisions into a
public work instruction in support of executive staff.
4. Review the current practice of revoking the right of residence with retroactive effect. In the case of an approach based on EU law, the Division must remain prepared for new
developments that could positively or negatively impact the existence of a personal conduct and present threat all the way through the appeals phase.
For more information contact David de Jong.