Deservingness in Judicial Discourse. An Analysis of the Legal Reasoning Adopted in Dutch Case Law on Irregular Migrant Families’ Access to Shelter

Lieneke Slingenberg

doi:10.1017/s1474746421000075

Abstract

In September 2012, the Dutch Supreme Court upheld a judgment of the Hague Court of Appeal that the eviction from basic shelter of a mother and her minor children, who did not have legal residence in the Netherlands, was unlawful. This ruling was instigated by a radically new interpretation of the European Social Charter’s personal scope and caused a major shift in Dutch policy.This article provides a case study into the legal reasoning adopted by the Court of Appeal and the Supreme Court. It argues that, instead of relying on legal doctrinal reasoning for justifying the outcome, both courts referred to factors that the general public relies on to assess people’s deservingness of welfare. This finding raises fundamental questions about the relationship between human rights law and deservingness; and calls, therefore, for further research into the relevance of deservingness criteria in judicial discourse.

Highlights

While the relevance in public discourse and policies of people’s deservingness of welfare has been studied extensively in sociological and political science research, deservingness theory has not found its way into legal scholarship or in literature analysing case law
This study systematically identifies the arguments adopted by the courts; compares them with deservingness theory; and evaluates them from a legal doctrinal perspective
This article has analysed the legal reasoning adopted by the Hague Court of Appeal and the Supreme Court in their landmark judgments on access to shelter for unlawfully present migrant families

Summary

Introduction

While the relevance in public discourse and policies of people’s deservingness of welfare has been studied extensively in sociological and political science research (see the ‘stateof-the-art’ review earlier in this themed section), deservingness theory has not found its way into legal scholarship or in literature analysing case law (see, Davies, 2018). The Court of Appeal found a number of circumstances of the case relevant for deciding on the lawfulness of the eviction and for making a distinction between the mother and the children in that respect.

Results

Conclusion