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Netherlands Proposes Criminalisation of Return Frustration for Foreign Nationals Without Lawful Residence

🇳🇱 NetherlandsEntry Rules1 recorded versionLast change 7 Oct 2026
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Current rules

The proposed Article 108a creates a new criminal offence tied to active obstruction of an existing return or removal process. It does not simply state that every foreign national without lawful residence commits a crime. The draft requires several conditions to be met. First, the person must be an adult foreign national without lawful residence in the Netherlands. Second, the person's applicable departure period must have ended. Third, they must evade or obstruct the preparation of their departure or removal procedure. Finally, that behaviour must mean that an existing return or removal decision cannot be carried out. The government's own explanation gives concrete examples of the type of behaviour it wants to address. A person might provide no information or false information about their identity, or fail to cooperate with the application for a replacement travel document when such a document is necessary for their return. The proposal therefore focuses on behaviour that actively prevents return, rather than the fact of unlawful residence by itself. This is also why the government repeatedly describes criminal law as the last step after other return efforts have failed. The maximum proposed punishment is six months in prison or a second-category fine. Because the maximum amount for that category is €5,500 in 2026, the proposal would allow either form of punishment, subject to the decision of the criminal justice authorities and court process. An important part of the proposal's legal context is EU law. The Dutch government's parliamentary explanations have repeatedly stated that criminal sanctions involving imprisonment must be applied consistently with the EU Return Directive and the case law interpreting it. The government has said that imprisonment can only be used at the end of the return process against people who are able to cooperate with departure but deliberately refuse to do so and thereby effectively frustrate return.

Overview

The Netherlands has opened a public consultation on a new bill that would make actively frustrating a person's own return from the Netherlands a criminal offence in certain circumstances. Minister for Asylum and Migration Van den Brink presented the proposal on 7 October 2026, and the Ministry of Justice and Security opened the draft law for public consultation on the same day. The consultation will run until 18 November 2026.

Who is affected by the latest change

  • Adult foreign nationals who do not or no longer have lawful residence in the Netherlands and whose applicable departure period has expired
  • People with a return or removal decision whose own conduct prevents that decision from being carried out
  • People who actively obstruct return by conduct such as withholding or providing false identity information or failing to cooperate with obtaining a required replacement travel document
  • The Dutch return and criminal-justice authorities that would investigate, prosecute and process cases under the proposed offence
  • Municipalities and organisations involved in the return process and support of people without lawful residence may be affected by the new legal environment

What changed in the latest version

Before

The Netherlands already has a legal duty requiring a foreign national who does not or no longer has lawful residence to leave the country voluntarily within the applicable departure period. Article 61 of the Aliens Act establishes that duty, while Article 62 generally gives a person four weeks to leave after a return decision, although the period can be shortened or immediate departure can be required in specified circumstances. The Dutch government already has administrative tools for achieving return. Once a person in the Netherlands receives a return decision, their details can be transferred to the Dienst Terugkeer en Vertrek (DTenV), which is responsible for supporting and organising departure. Where voluntary departure does not happen, the authorities can use measures available under the existing return system, including forced removal where legally possible. Criminal sanctions also already exist in some immigration situations. The government notes that frustrating return can currently be punishable in certain cases, including where someone is subject to an entry ban or an undesirable-person declaration. The new bill is intended to extend the circumstances in which criminal law can eventually be used. The previous legislative approach was broader and more controversial. A 2025 legislative proposal would have criminalised unlawful residence itself for adults without lawful status. That legislation was part of the wider asylum package and was ultimately rejected by the Dutch Senate on 21 April 2026. The Senate also rejected the associated Asylum Emergency Measures Act. Following those defeats, the Dutch government committed to preparing a new, separate bill specifically targeting people who frustrate their return. The government told Parliament in April and May 2026 that it intended to bring forward new legislation after further legal work and consultation.

After

The proposed Article 108a creates a new criminal offence tied to active obstruction of an existing return or removal process. It does not simply state that every foreign national without lawful residence commits a crime. The draft requires several conditions to be met. First, the person must be an adult foreign national without lawful residence in the Netherlands. Second, the person's applicable departure period must have ended. Third, they must evade or obstruct the preparation of their departure or removal procedure. Finally, that behaviour must mean that an existing return or removal decision cannot be carried out. The government's own explanation gives concrete examples of the type of behaviour it wants to address. A person might provide no information or false information about their identity, or fail to cooperate with the application for a replacement travel document when such a document is necessary for their return. The proposal therefore focuses on behaviour that actively prevents return, rather than the fact of unlawful residence by itself. This is also why the government repeatedly describes criminal law as the last step after other return efforts have failed. The maximum proposed punishment is six months in prison or a second-category fine. Because the maximum amount for that category is €5,500 in 2026, the proposal would allow either form of punishment, subject to the decision of the criminal justice authorities and court process. An important part of the proposal's legal context is EU law. The Dutch government's parliamentary explanations have repeatedly stated that criminal sanctions involving imprisonment must be applied consistently with the EU Return Directive and the case law interpreting it. The government has said that imprisonment can only be used at the end of the return process against people who are able to cooperate with departure but deliberately refuse to do so and thereby effectively frustrate return.

The proposal represents a shift in the Dutch approach to people who have exhausted their right to remain but do not leave. Dutch law already requires a foreign national without lawful residence to leave the country within the applicable departure period. The government currently uses administrative measures to organise departure and removal, but says there are cases where a person actively prevents those efforts from succeeding. The government says the problem can arise, for example, where a person refuses to provide information needed to establish their identity or does not cooperate with obtaining a replacement travel document. In some cases, a third country will only accept a person if that person takes action themselves to obtain the necessary document. When that cooperation is deliberately withheld, the government says removal may become impossible. The significance of the proposal is therefore less about creating a general offence of unlawful residence and more about adding a criminal sanction at the end of an existing return process. That distinction is central to how the government has presented the measure and to the wording of the consultation draft. The proposal is also important for the Netherlands' wider migration policy because the government is presenting effective return as an essential part of the asylum system. The minister says people who have no right to remain but repeatedly frustrate their removal should be capable of being sanctioned after other efforts have failed.

Explained simply

Imagine you're staying at a friend's house, but your parents say you need to go home. If you don't have permission to stay at your friend's anymore, and you purposely make it difficult to leave – like hiding your shoes or giving the wrong address – then this new rule means you could get into serious trouble, even jail. It's like the government saying, 'If you're not allowed to stay, you must leave, and if you try to stop that, we will punish you.'

Frequently asked

Version history

  1. v1Issued 7 Oct 2026ConsultationCritical impact
    Netherlands Proposes Criminalisation of Return Frustration for Foreign Nationals Without Lawful Residence

    The Netherlands is introducing a new Bill on Criminalisation of Return Frustrators (Wet strafbaarstelling terugkeerfrustreerders), which will make it a criminal offence for foreign nationals without lawful residence to actively frustrate their departure. This proposed legislation, presented by Minister Van den Brink on 7 October 2026, aims to target individuals who obstruct their return after all other efforts have failed, potentially leading to a prison term. Currently, frustrating return is only a criminal offence in specific instances, such as having an entry ban.

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