This chapter looks at two sets of legal frameworks relevant to the Nest! Project: the regulations on building and construction and the regulations concerning migration. The regulations on building and construction are an important factor to take into consideration for the realization of temporary settlements. The laws on migration relate to a potential group of pioneers and to diversity management and integration as one of the social issues to which temporary settlements can contribute solutions. Problems and paradoxes of the existing regulations are analyzed and suggestions developed both to create more flexibility in the building world, especially in regard to enabling temporary settlements as well as to create a more productive and pragmatic handling of migration and refugee issues, avoiding many of the unwanted consequences of current refugee policies. The Nest! offers solutions to the pressing housing problems of status holders as well as opportunities to integrate and build up a future in the host country.
Laws and local regulations more often intend to avoid the negative than to stimulate the positive. Local enforcers show a similar focus and carefulness to avoid the unwanted, resulting in ever more detailed and complicated regulations that sometimes end up being counter-productive to the original intentions.
This is the case in the field of building regulations. Early 2002 the national task force housing production in The Netherlands concluded that the disappointing production figures were connected to complicated, contradictory rules and regulations.
This is even more the case in the legal framework surrounding migration. The execution of the latest legislation is limited to minimizing the influx of refugees. Little or no attention is given to the question of how to make use of the capacities and qualities of those who do enter.
There are two main possibilities for government to make reality conform to the rules. One is to focus on strict enforcement. This path is taken in current policies concerning refugees. The aim is mainly to avoid the negative. When this appears to be virtually impossible, the regulations are strengthened and simplified. The approach focuses on stricter supervision, centralized guidance and stricter enforcement of the rules. In this case differentiation disappears, which can result in sheer denial of the existence of whatever doesn’t fit the rules.
Another way of conforming reality to the rules is to detail and specify the rules in order to enclose exceptions. In this approach an increasing number of specifications are created. However, a too differentiated approach might in the end reach a deadlock. There are simply not enough experts to fathom the rules and even the government gets stuck in its own regulations. This happens in the field of planning.
Although several successive governments have promised to simplify the rules, the situation is getting more complicated.
As a middle road between the narrowing down approach of migrant policies and the detailing approach of spatial planning, the new building decree is a good example of differentiation. There is a clear set of negative cases that must be avoided, notably anything that can lead to fire, collapse and health risks. Those matters are not to be treated lightheartedly and the requirements are equal for both new buildings as well as existing constructions. However, when it comes to stimulating desired matters like durability and energy conservation, the requirements for newly built constructions and existing buildings differ considerably. Such a differentiated approach offers perspectives for the Nest! project.
In this chapter we identify the legal context and margins for a temporary settlement and lay out how the settlement can be realized within these margins.
Principle is that nothing illegal happens and that possibilities and limits are explored in close cooperation with the authorities.
The following questions are examined:
▪ What are the rules concerning temporary housing and infrastructure?
▪ What are the rules concerning the living and working conditions of asylum-seekers?
▪ What are the goals and objectives of the regulations?
▪ How can innovative solutions be realized within the margins of the regulations?
▪ Can useful suggestions be made to widen the margins?
The approach being used in regulations concerning spatial planning is an increasingly detailed differentiation of rules and regulations. Confronted with a reality that does not comply with the rules, those rules are being increasingly detailed down to enclose the existing exceptions. Instead of piling up everything into a large pile, several small piles are being created. Subjects like the protection of endangered species for instance are enclosed in guide-lines, that change so rapidly, that the builder who is specialized differently, can hardly keep up. The sector therefore complains about the rules being too complicated, attuned badly to practice and sometimes that they are even mutually contradictory.
Too much differentiation might in the end lead to reaching a deadlock, which seems to have happened by now. The national task force on housing production concluded early 2002 that the disappointing production figures were connected to complicated, contradictory rules. Six months later the National Council of Local Authorities VNG, presented the brochure Speed up the rules- Eight VNG-suggestions for a higher building production, in which the organization drew the same conclusion. Six months later the new minister agrees on the matter in his speeches and official publications (for instance the cabinet’s position paper on spatial policy). It is the same old tune over and over again: this can not go on like this, a deadlock is being reached, there simply aren’t enough experts to fathom all the rules, we need quick, bold actions.
But what is actually being done about it?
While the building sector as well as the citizens blame the municipality for
complicating the situation by holding on to an endless stream of obligations
and licenses, municipalities in turn blame the national government. After all
it is ‘
The complicated regulations are there of course for a reason. In the past the health or even the lives of construction workers were often endangered. Construction caused danger and pollution, they were a threat to the surrounding area, the ground water or archeological sites. The objective of rules that result from such situations is to prevent danger and damage.
It is important
that all involved can object and appeal against a
license. We should wonder though, what exactly it is that people object
against. For example someone objecting to a license to cut down a tree, might
be attached to this particular tree. However it could also be, that the
person does not object the cutting down of the tree as such, but rather the
plan that requires the tree to be cut down. Then objecting is mainly a matter
of ‘nagging the project’. In
This example shows that in the end there will always be a way to carry a project through. Objection in such indirect ways, only causes delay. Reducing the appeal possibilities might not be the best way out of the impasse. Although it is not desirable to let someone with motives unrelated to the issue, abuse the possibilities to object, it is not good to curtail this fundamental right either.
It is not true that everyone has equal access to this right by the way. Because the regulation is so complex that only experts know how to deal with it, it is mainly neighborhoods with a high ‘lawyer density’ that manage to endlessly postpone plans. The regulations in this area kind of miss the target: they have a limited accessibility, but are responsible for many delays and costs because of improper use, in contrast to relative few examples in which injustice was prevented by canceling projects.
When in 1992 the housing law had been revised, the new building decree came into operation as well. This building decree contains nationally valid standards about safety, health, use, energy and the environment. Starting in 2003 a fundamental change in the system of the building regulations has been introduced that simplifies procedures. Regarding content not much has changed.
A few prescriptions have been changed or deleted in response to governmental promises to dramatically simplify building regulation. The idea is to avoid as much useless rubbish as possible.
The new building decree includes regulations from laws other than the housing law. That way in the end, when all laws are integrated, all regulations related to building can be found in one place, which before was not the case. An important change that has been introduced is the application of the degree of occupation of a place. Until now only ventilation requirements were related to the amount of people using the building. But the presence of more people demands for instance also larger escape routes. So now the building regulations say that the applicant should specify how many users will be in different parts of the building and the license will be issued accordingly. Once a certain ‘grade’ has been requested there can not be a higher degree of occupation later on.
So in the new system it is not the type of building that defines the demands but the use of spaces. The license applicant makes known, which space will be used for which purpose. There are twelve different functions, including for instance living, meeting (restaurant, nursery, church), office, shops or sports. The ‘living function’ is divided into three sub functions notably ‘living functions in a house’, living functions in a trailer’ and ‘other living functions’.
Within the regulation we can make a difference between the basic prescription necessary for maintaining life and health of the users and rules that aim at stimulating desired matters like durability and a low level of energy use. Although a few requirements are relatively new, most requirements concerning safety are as old as the rules themselves. The prescriptions on safety concern, besides the construction itself (the building should not collapse), mainly the risk of fire. After a café in Volendam burned down, nobody questions the necessity. Nevertheless architects fear the fire brigades test, which is extremely strict.
The objectives of the prescriptions are clear:
The chances a fire can start or spread must be minimized.
A fire must be restricted to a small area (hence the rules on creating compartments).
People inside burning buildings must be able to get themselves to safety (hence rules concerning escape routes, related to the degree of occupation in utility buildings).
Before houses needed doors that could withstand fire for twenty minutes to prevent people from being surprised in their sleep, with too little time to escape. But because doors are often open, the new prescription demands an optical fire alarm instead located at a central place in the house. With these alarms present in every house it is expected that twenty human lives will be saved each year. Thus the dwellings in the temporary settlement, however modest, need to include such a facility.
Many rules in the building decree are not so much aimed at preventing unhealthy or dangerous situations, but at stimulating positive matters like durability or saving energy. When it comes to this there is a much larger difference between the requirements for existing buildings and newly built houses. Stimulating desired matters through the building decree is a rather indirect method, a license will not be granted until a building meets certain qualifications.
The new building decree aims at facilitating certain developments within society, like a larger demand for quality and energy conservation. Because many elderly people desire to live at home as long as possible, the requirements for stairs for instance have changed: they need to be wider and shallower. And since the Dutch people have grown taller the minimal ceiling height has been raised from 2.40 meters to 2.60 meters. The minimal height of doors, hallways and toilets has risen from 2.10 meters to 2.30 meters.
This way the average Dutch person who becomes older, taller and according to the governmental housing policy more focused on quality, is taken into account. The system is rather static; only once a license is requested for this average Dutchman who is supposed to use the building in a fixed way for a specific purpose. For example using the attic as bedroom later on when the kids become teenagers, is not allowed. This despite the fact that it is very likely to happen, since the structure of a family inevitably changes over the years. Using a dance school as a discotheque when it changes owners, will probably not be possible either. Although the use of the building is comparable, there will be more people present in the new situation, and therefore larger escape routes are needed.
The dilemma is that the government has the possibility to supervise only once. Once the license is granted the authorities can’t come and check all the time to see if everything still meets the requirements. So authorities will check very carefully and with great detail, for they give a license till eternity. This way of avoiding the negative, may lead applicants to do only what is necessary to get a license, instead of addressing the actual safety objectives behind the requirements. This is different from the situation in already existing buildings. Positive measures like information and subsidies will stimulate owners to adjust their building to the requirements.
It would be naive to think that the temporary settlement could be realized merely by using a so called article 17 license (for temporary use). The exact number and kind of licenses to apply for will become clear only during the design process, but they will be many. Each and everyone of them is undoubtedly useful and necessary. That is why we conclude that because of the great deal of complexity a self-help project in The Netherlands is impossible. Expertise is necessary and needs to be hired. Project development seems to be feasible only by specialized firms.
It is discouraging to realize that only big firms that have profit as primary objective, are in charge of building the future of our cities. We are convinced that this is not necessary when institutions that uphold the rules cooperate. If plans and their background motives are discussed from the beginning, the involved parties can point out what their interests are and help to make sure the plans will fall within the margins of the licenses. If plans are discussed with the authorities from the beginning or created in close collaboration, there is no need for ‘using the emergency break’ (withholding a license).
Exactly the same goes for the objections that can be expected from the neighbors. A large project like ours can always count on criticism and objections. In reality people mainly object change as such, they protest against everything potentially threatening the status quo. Even improvements will be accepted only after they are being explained. New houses for instance, even if they are very beautiful or good, will bring more people, cars, playing children and therefore annoyance into the neighborhood. The people already present do not have any interest in that whatsoever. Therefore it is no surprise that the only instrument they have will be used: they will object and complain.
At least, that is if the traditional method of project development is followed.
If the realization of the Nest! Project depends on using the legal system to force its way through, it will miss its target. Therefore the Nest! Project has included several projects that include the involvement of the residents of the neighboring communities and also address their needs. (See Chapters 4, & 9 -11).
Consultations with the authorities who supervise building and housing in Arnhem, resulted in the advice to think of existing buildings to realize the temporary settlement as several buildings will become available in the upcoming years, that no longer can be rented out as offices and as it is much more simple to grant a license for the use of an existing building. Something new, even the simplest barrack, needs to meet the requirements of the complete building resolution.
An existing building, hard to rent out because it lacks computer cables for instance, can be easily adjusted to another function. Because the diversity of requirements depends on the intensity with which the building will be used, it is simple to meet these requirements by bringing down the amount of users. The municipality stimulates the use of buildings that are about to become empty and grants licenses easily as soon as the safety and health requirements are met. In collaboration with authorities it is possible to use this space, when it serves a social goal.
For the general idea of temporary settlements this is a valid option. In the case of the Vinex town extension location Schuytgraaf however, the problem is that at the location of the temporary settlement there are no empty office buildings or factories.
The fact that a new construction can not be used for the same purpose for which an already existing building would meet the requirements, remains awkward. It results in a contradictory situation: everything is planned and unchangeable for eternity, even though it is clear from the start that there will be change. The temporary settlement will after five or ten years either disappear or be consolidated and meet the requirements.
Therefore it seems sensible to grant a license for a limited period. Hereby the constructions have to meet the basic requirements concerning safety and health that are also being applied to existing buildings from the start. Only after the initial period there will be a second test to check if the requirements for newly built houses are being met. In the meantime the construction can be improved notably, so that a full building license can be granted. When this turns out not to be feasible, the temporary construction has to disappear within a period everyone involved agrees upon. This way the government can keep an eye on the situation. Besides that, there will be less dependency on the once-only everything-or-nothing decision. This actually meets the process and character of a temporary and developing settlement.
refugees have been an active force in the building of cities. People
don’t migrate for fun. Forced by circumstances, migrants are the kind
of people who know how to take matters into their own hands. The Dutch moving
centuries people did not migrate with the intention to build up the host
country, but simply to save their backs or become more prosperous. Newcomers
had to sort out their own business. Because not any state resources were
spent on them, it wasn’t important whether someone migrated to offer
their children a better future (like Dutch migrants in the fifties) or to
escape prosecution in their home country (like the Huguenots and Jews). Nowadays
however there is a clear distinction between migration intended to work
-temporarily or permanently- in the
It is important to keep in mind the difference between these two groups, especially since the costs of ‘real’ asylum-seekers are €13,000,- per person per year. The asylum procedure is aimed at getting the true story and at checking whether the asylum seeker has a solid reason for fleeing his/her country. Subsequently people that do not meet the criteria can be excluded from the expensive facilities for asylum-seekers.
In the field of asylum, jurisprudence gives rise to rapidly changing regulations. According to specialist Van Huijstee there hardly are any possibilities left for asylum-seekers. “Not even for those asylum-seekers that are traumatized or have been tortured. About seven years ago this group could apply for a residence permit on humanitarian grounds. The application was often accepted when you could support it with a report by Amnesty International or an attending doctor. Nowadays the legislation defines, supported by jurisprudence of the highest State Council, that torture and trauma must be reported during the first interview: exactly what most asylum-seekers are not capable of. Besides of that, nobody asks them about such matters clearly. When you try and prove it later on in the process, by showing reports and letters by doctors, the case will not be accepted unless this is evidence that did not exist at the time of entry. The same argument is applied to political evidence. This way it has become impossible to repeat an asylum request. A large number of traumatized and political asylum-seekers are subsequently being refused.”
An asylum solicitor
is allowed to spend fifteen hours on one case. However, to do this decently,
one needs six to ten times more hours. Asylum solicitors therefore work
overtime. Since nowadays all courts are qualified to handle refugee cases,
there is a discrepancy between the capacity of asylum solicitors on the one
side and the
Since 2001 the amount of people taken care of by the COA has declined considerably. On the one side this is because the number of people applying for asylum has decreased; from approximately 2000 persons a month in 2001 to 600 persons a month early 2003. On the other hand the asylum procedure nowadays takes less time. Within 48 hours one will be notified whether or not the application will be taken into consideration. If it is, one is entitled to be taken care of during the procedure. But in eighty percent of the applications this is not the case. So only one out of five newly arrived persons will use the COA facilities for more then 28 days. Since early 2003 no more then 150 persons per month enter the COA facilities compared to 2000 persons before and at the same time the files of a greater number of people in the procedure are being completed.
The consequence is
a decreasing need for places, from 80,000 in 2001 to 70,000 in January 2003.
According to the COA the amount of places needs to be reduced to 50,000 places
in 2004 and 30,000 in 2005. To realize this, temporary centers have closed
already and several other centers will be closed soon as well. In
In a letter dated
During the years of an exceptional high influx of asylum-seekers when the COA was not able to handle the amount of applications, they started Self-Care Arrangements (ZZA; Zelf Zorg Arrangementen). The arrangement exists since April 1998 and ordains that asylum seekers can receive a budget for finding their own accommodation. Because this group of people doesn’t know their way around in the tense housing market, the Dutch Council of Municipalities (VNG) called it the “sort-it-out-yourself-arrangement”. It would lead people straight into the arms of obscure landlords. And indeed, for a number of people the process of finding a place to live in was an unpleasant experience.
However, if an affordable alternative could be offered legally, this arrangement could be interesting to the Nest! Project. Lodging by the COA costs well over €400, - per person per month for a room shared with three other people. For the same amount of cash the planned temporary settlement could offer an interesting alternative.
It offers people (who can handle it) a chance to integrate directly. It gives them the opportunity to take a big step and become responsible for their own lives. Unfortunately this arrangement has been discontinued as space in the asylum seeker centers has become available.
Taking care of
people whose asylum-procedure had a negative outcome and who are no longer
welcome in the
refuses to leave the country out of his or her own free will, he or she can
be forced by law and put into custody. This implies that one ends up in
prison, surrounded by common criminals. Such ‘foreigners custody’
is being imposed on people who do not have the right to an asylum procedure
but who do try to enter the country, as well as on people who are arrested
for an offence like being in the train without a ticket and who appear to be
illegal. According to the Service Judicial Institution DJI, 1300 persons were
being detained in the beginning of 2003 on grounds of illicit residence in
In 2001 the DJI had
a formal capacity of 13,000 places. Taking into account the lack of cells in
Specialists in the field of criminal law object to this form of freedom restriction, which in criminal law is only a last resort. Suspects of criminal acts may be held in temporary custody for a maximum of 106 days, while the detention of asylum-seekers can be unlimited. The annual report of the Commission for Supervision on Police Cells in the Region of Amsterdam shows that asylum-seekers too often end up in police cells, sometimes for a long time. According to this commission, this is both unacceptable and offensive.
When putting in a second appeal for asylum, one has no right to housing and pocket-money, but one is not allowed to work either. Still such people have to find a way to sustain themselves and travel to Rijsbergen or Zevenaar once a week, in order to get a stamp and stay in the procedure.
The new migration law causes a widening gap between national policy and local reality. Municipalities are confronted with a growing group of people putting in a second appeal who on one hand legally inhabit the city waiting for their procedure, but on the other hand have no right to basic facilities and who are not allowed to work to support themselves legally.
In many instances local officials offer help, mainly to keep the peace or protect public health. A while ago the chair of the CDA Womens Council, Marjan Bijsterveld, went as far as to invite a group of people to stay at her place overnight.
Municipalities dump people on the streets, not because they are convinced that it is the right way of dealing with the situation, but simply because the government tells them to do so. Sometimes, right after eviction, municipalities get in touch with support organizations and ask them to take care of the evicted families on their expense. A number of municipalities refuse to send people out on the streets when there is no guarantee that they will be expelled from the country right away. They refuse to have homeless families living within the borders of their municipality. There (still) is not an official ban on offering help to people whose asylum procedure has terminated.
According to the COA the costs of asylum-seekers has not changed in years. It is about €13,000,- per person per year. 30% or €3,900, (€325,- a month) is spent on food, medical costs and payments to the municipalities, 40% or €5,200,- (€433,- a month) is spent on housing and 30% or €3,900, are staff expenses.
Now that the number of asylum seekers decreases, the relative share of staff expenses will increase, because 70% of COA staff have a permanent contract. Besides that, the amount of money a refugee receives for clothing and food has not been adjusted to the official norm for years. Asylum-seekers have less clothing and food money than they should have according to the national norms. In their appeal to the new government the COA suggests to raise this contribution to the minimal level.
The ASKV, a small-scale organization that supports people that are expelled from COA facilities, has 25 places offered by private persons. Approximately 100 individuals make use of this care yearly, which costs €17.000 in total or €680 per person per year.
Asylum-seekers are allowed to work twelve weeks a year. According to the COA this is not enough. A great part of the income that comes from this work flows back to the COA. The COA uses the money to cover the costs of housing the asylum seekers.
This creates an awkward situation. A group of people is not allowed to work, but (ever since the abolition of labor migration) these are the only people prepared to perform certain tasks, like for instance peel bulbs or harvest asparagus.
The paradox is, that the costs that are presumably the reason to distinguish between the two groups of migrants wouldn’t be there, if this distinction would not exist to begin with.
An important objective
behind the refugee policy is making a distinction between real refugees (and
making sure they integrate as soon as possible) and economic refugees
(expelling them). Because of the huge mistrust concerning refugee stories and
the growing amount of application refusals it seems that another important
objective is to limit the influx of migrants. Especially since September 11th
the fear of strangers has increased as well as the notion that the
Besides of humanely taking care of a limited amount of refugees, the regulations intend to stop a growing influx of unwanted migrants. During the eighties and nineties, the number of people claiming to be refugees grew explosively. Apparently the conclusion in regard to these high numbers was, that an increasing percentage of migrants abused the asylum procedure, because of the excellent facilities for refugees. Therefore the existing rules were applied more vigorously, leaving no space for exceptions.
This one-dimensional focus on excluding the negative diverts attention from the objectives of the regulation in regard to stimulating the positive. The necessity of offering care to ‘real’ refugees is agreed upon even by supporters of the strictest policies, if it were only because this is an obligation under international law.
In general there are two large blind spots in Dutch migration policy:
On the one hand there are the unwanted consequences for society of large groups of people without the right to a resident permit. These problems cannot be taken away by simply declaring these people illegal. On the contrary. They form a threat mainly because they are illegal. They depend on illegal housing (often in neighborhoods that already are under pressure) and illegal employment (including prostitution and crime). The chances of ending up in a criminal environment is bigger these days, because the law requires a valid residence document for employment and insurance. Homeless people roaming the streets uninsured and without legal employment, are a greater danger to security and public health, than people working hard to build up an existence.
On the other hand, The Netherlands needs a continuing influx of people prepared to do the dirty, heavy and labor intensive jobs for little money. Asylum-seekers are, despite their often high educational level, prepared to do almost everything, especially those declared ‘illegal’. By denying their existence, the existence of the work they do is denied as well. It would be misleading, however, to measure for example the amount of cleaning work done within Dutch households, from the income-tax revenues of domestic work. That this work is done illegally is common knowledge and it is widely accepted. There is a growing amount of other types of work that depend on low cost migrant labor. This needs to be acknowledged. Newly arrived migrants are not a burden, but an important link in the economic chain and the society owes them as much gratitude as they owe society gratitude.
Because asylum-seekers are subject to national policies with narrowing margins, there is little space left for innovation. Nevertheless, municipalities and individuals being confronted with the consequences of the mentioned blind spots feel an increasing moral obligation to offer help. Because of existing legislation it is not to be expected that asylum-seekers will get permission to take part in the temporary settlement, even if this would imply more cost effective housing than in an asylum-seeker center. Therefore an important group of people motivated to be pioneers cannot take part in the Nest! Project.
However, it is possible to offer housing in the temporary settlement to status holders, who from sheer necessity still live in the asylum-seeker centers. This helps municipalities in fulfilling their target on housing refugees and the COA will be relieved of the burden of housing people who are not part of their responsibility.
The people involved will be happy to leave the center in which their privacy and possibilities are being reduced to those of pupils of a boarding school. Status holders are most often eager to take their lives into their own hands again. Besides of that, as long as they live in a center, they cannot participate in an integration course, which makes it hard to find a job.
Even people who have a resident permit and who have a place to live might be interested, if living in the temporary settlement is cheaper. Newcomers on the housing market not always manage to lay their hands on accommodation of favorable price and quality. Besides of that, many prefer to save on rental expenditure and live in a more modest house in order to consolidate an existence as soon as possible and save money to allow family members to join them from their home countries. Another motivation for this group of people might be the possibility of literally building up something and participating in the consolidation of the temporary settlement into a permanent one. This could make living in a town extension neighborhood a realizable option for them as well. (See Chapter 8).
Avoiding the negative is an important motivation of migrant policy. Following this intention in our opinion should include limiting the number of people costing money while not contributing anything useful. If given the chance to work and contribute to society, asylum seekers would not cost so much to begin with. Society could take advantage of this situation, not just because refugees are motivated people willing to do the hardest jobs, but also because these are people having knowledge and skills that are scarce or even absent in Dutch society.
A lot of misery
could be prevented if the
This suggestion generally is refuted on the grounds that it causes a split between first class and second class labor. This indeed is the case. However, the difference already exists. A measure like the one mentioned above will not only make this difference visible, it will also reduce it notably. Denying the existence of this difference comes down to spasmodically maintaining an ‘ostrich vision’, an everything-or-nothing situation in which a small group has access to first class employment, while second class employment is delegated to the realm of illegality, thus widening the cleavage between first and second class employment.
Because this project does not have the ambition to adjust national regulations, suggestions for pragmatic local solutions are being offered in the chapter on the local economy (Chapter 7). The suggested local currency to be introduced in the temporary settlement offers people the opportunity to work legally and earn value by obtaining a currency that can only be used inside the local community. The inhabitants of the by now closed asylum seeker center in Woudrichem successfully used a similar system. This suggestion does not widen the margins, but makes better use of the existing limited space within these margins.