Court Cases / Eleventh GMS Court Case

RESIDENCE-GAP RULE VIOLATES MANY ARTICLES OF ICCPR

In this case we have tried to convince the UN Human Rights Committee that the
‘residence-gap rule’ violates a number of ICCPR-rights. The ‘residence-gap rule’
is a system in which foreign nationals applying for a permanent residence-permit
must prove that they have legally resided for more than 5 years consecutively
(without any interruption, not even a single day) within the territory of the
Kingdom of the Netherlands (specifically the islands of the former Netherlands
Antilles). Such an interruption is called a ‘residence-gap’. Often short residence-
gaps occur for many legitimate reasons. Nevertheless, just one day’s interruption
during 5 years prior to the petition for permanent residency will result in a
disproportional ‘penalty’ in the form of not being able to apply for a new
permanent residence permit during 5 years following the ‘residence-gap’.

We upload here only our Communication to the UN Human Rights Committee, which
decided not to treat the case. If the Committee does not treat the case, it is
declared ‘non-admissible’. This is not a correct term, because
non-admissibility suggests that the Communication is procedurally incorrect.
However, that is not at all the case. It is just that the Committee in
underfunded and understaffed (there are not enough judges to try all cases
submitted). In fact, only about 5% of cases submitted are treated. 95% are
rejected without any trial.

Here we encounter the ‘Black Hole of Human Rights’. We do not blame the judges.
We blame the International Community for not addressing this problem. It
basically means that 95% of potentially serious human rights abuses are never
heard nor tried by the Committee. That means that the judicial protection of human
rights internationally is incomplete. Extremely incomplete. Something is better
than nothing. But this ‘black hole’ makes the judicial protection of human
rights minuscule. A very sad state of affairs. We wrote an article about this
(in English) in our e-book ‘Paleis van Ma’at’ deel 2, entitled ‘Human Rights
under the Bus’ (pg 82). You can find the e-book here:
http://www.arcocarib.com/ebooks/paleis-van-maat-deel-2/