gatekeepers

I'll admit it. As a lawyer specialized in dealing with the government, my favorite part of any procedure is when the application has been filed, or we are in appeals, because then I can move about without resistance in the artificial, Tron-like world of the law. It's just me and the government, skating around and throwing frisbees of abstract legal arguments at each other. [It makes perfect sense to me that I made the transition from computer programming to public law.]

But as an administrative lawyer, I've also become quite adept at dealing with the human interfaces to the world of the law. Recently at the gym, chatting about my work with an American expat* , I was listening to his stories of frustration in dealing with all kinds of gatekeepers in the Netherlands, whether civil servants or customer service representatives. He asked me, "How do you deal with it, hearing that phrase over and over again: That's imbossible ?"
"I rarely hear that phrase," I replied.  It's true. There are rarely any surprises for me in dealing with a civil servant, because I know that their range of actions is fully determined by the law, and if I know that the law allows me to file an application for something I need, I'm not going to let that gatekeeper stand in the way.

An increasingly large part of my work lately is in coaching clients to see things the same way when they file their applications. It's gotten to the point where I am now giving my clients a piece of required reading before their first appointments at city hall and the IND: the classic parable 'Before the Law' by Franz Kafka, a micro-story within a story in his novel The Trial. Without any further ado, I will paste  the excellent translation by Ian Johnston below (click on the link for all necessary copyright information):

Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks if he will be allowed to come in sometime later on. 

“It is possible,” says the gatekeeper, “but not now.” 

The gate to the law stands open, as always, and the gatekeeper walks to the side, so the man bends over in order to see through the gate into the inside. When the gatekeeper notices that, he laughs and says: 

“If it tempts you so much, try going inside in spite of my prohibition. But take note. I am powerful. And I am only the most lowly gatekeeper. But from room to room stand gatekeepers, each more powerful than the other. I cannot endure even one glimpse of the third.” 

The man from the country has not expected such difficulties: the law should always be accessible for everyone, he thinks, but as he now looks more closely at the gatekeeper in his fur coat, at his large pointed nose and his long, thin, black Tartar’s beard, he decides that it would be better to wait until he gets permission to go inside. The gatekeeper gives him a stool and allows him to sit down at the side in front of the gate. 

There he sits for days and years. He makes many attempts to be let in, and he wears the gatekeeper out with his requests. The gatekeeper often interrogates him briefly, questioning him about his homeland and many other things, but they are indifferent questions, the kind great men put, and at the end he always tells him once more that he cannot let him inside yet. The man, who has equipped himself with many things for his journey, spends everything, no matter how valuable, to win over the gatekeeper. The latter takes it all but, as he does so, says, 

“I am taking this only so that you do not think you have failed to do anything.” 

During the many years the man observes the gatekeeper almost continuously. He forgets the other gatekeepers, and this first one seems to him the only obstacle for entry into the law. He curses the unlucky circumstance, in the first years thoughtlessly and out loud; later, as he grows old, he only mumbles to himself. He becomes childish and, since in the long years studying the gatekeeper he has also come to know the fleas in his fur collar, he even asks the fleas to help him persuade the gatekeeper. Finally his eyesight grows weak, and he does not know whether things are really darker around him or whether his eyes are merely deceiving him. But he recognizes now in the darkness an illumination which breaks inextinguishably out of the gateway to the law. Now he no longer has much time to live. Before his death he gathers in his head all his experiences of the entire time up into one question which he has not yet put to the gatekeeper. He waves to him, since he can no longer lift up his stiffening body. The gatekeeper has to bend way down to him, for the great difference has changed things considerably to the disadvantage of the man. 

“What do you still want to know now?” asks the gatekeeper. “You are insatiable.” 

“Everyone strives after the law,” says the man, “so how is that in these many years no one except me has requested entry?” 

The gatekeeper sees that the man is already dying and, in order to reach his diminishing sense of hearing, he shouts at him, 

“Here no one else can gain entry, since this entrance was assigned only to you. I’m going now to close it.”

The moral of the story is: if you know the entrance to the law is there, then don't hesitate, just walk on in. How this works, in particular at the IND, is as follows.

• First of all, I always remind my clients to put things in perspective. The person you are dealing with at the counter or on the phone is just that: a counter worker or a telephone operator. This is the lowest level of civil servant at the IND (and they might not even be a full civil servant-- the IND often hires them through temp agencies). They will have virtually no latitude to decide anything about your case, as much as they may try to make you believe that. 
• For that matter, what they say is not necessarily the word of 'the IND'. If you get wrong information about the law from (in particular) a telephone operator, you cannot rely on that later. (Because: "ignorance of the law is no excuse.")
• And for that matter, you must not view yourself as asking 'the IND' for permission to stay. The IND as an organization is one big gatekeeper. You must view yourself as asking the Dutch government to faithfully carry out the law. Therefore (and I'm sorry if this sounds like self-promotion) it is always advisable to talk to someone who knows the law first.
• Back to the first-level gatekeepers of the IND. Most of them are genuinely not bad people--many of them are in this job because they do want to help people. In addition to their gatekeeper role, they do have something of an advisory role; they are there to help advise you on what you need for your application to be approved.
• But sometimes they go a bit overboard with that task, so much so that they seem to resent it when an applicant has sought qualified legal advice. I have had clients hand in an application form that I have neatly filled in and printed out for them, only to have the counter worker insist that they are not applying for the right purpose of stay, then take the form, grab a pen, and put a big 'X' over the purpose of stay that I have checked off for the client and check off the purpose of stay that they think the client really wants. File a complaint if they do that; that is essentially falsifying a statement that you made, since a signed application form is your legal statement.
• Another tactic is what I call the 'false rejection'. Remember, this person does not themselves have the authority to reject your application. A true rejection, according to the General Administrative Law Act (Algemene wet bestuursrecht), has to be in the form of a written decision. A written decision must be signed by an authorized civil servant and it must be supported by reasons. In the IND's case, the authorized civil servant will not be working at the counter, but rather in the back office of one of the four regional centers of the IND (Hoofddorp, Zwolle, Rijswijk, Den Bosch). 
• A false rejection, on the other hand, typically takes the form of 'Oh, I'm very sorry-- but this application will simply not be approved. Why don't we make another appointment for you so that you can come back when you have X, Y and Z?' The way to counter this, at least if you are confident that you are filing the right application, is: 'Thank you for your advice. However, it is my right to file this application. I would like to pay the application fee as well. If the application is incomplete, the back office can always ask me/my lawyer to send them the extra documents that they need.'
• Note that the false rejection is an especially common tactic with EU citizens* who are applying for their proof of registration as an EU citizen, especially when they are bringing a non-European family member with them. This is, unfortunately, one of the areas where counter workers do get a rather large latitude to decide on the spot whether the EU citizen gets a proof of registration or not. (Ironically, the reason the system was set up that way was in the interest of 'convenience' and 'reducing bureaucracy' for EU citizens in the Netherlands.) If the counter worker tries to tell you as an EU citizen that you did not bring the right documents and to come back another time, especially if you already showed them documents proving that you have employment in the Netherlands (which means they cannot tell you you have to earn a specific amount of money or have proof of health insurance), then insist that your application for registration as an EU citizen be processed (and if need be, officially rejected) by the back office. This is your right. This is also very intimidating to the Dutch government, because if it gives you an official rejection as an EU citizen, that means that that has to be included in the statistics on the number of rejections of EU citizens (and therefore potential frustrations of the right of freedom of movement) that the Dutch government has to give the European Commission every year.