Appeal court judges on Tuesday ruled that the use of ethnicity and race by Dutch border police to determine who to pick out for further checks on their arrival in the Netherlands is discriminatory, overturning a lower court decision.

The courtroom in The Hague was filled with people who backed the case, many of whom cried as the ruling was read out.

The complaint was brought against the Koninklijke Marechaussee by a coalition of human rights organisations and two Dutch citizens who have been stopped repeatedly by the police agency at the border.

‘This is discrimination on the basis of race,’ the presiding judge Bas Boele said. Race, the court said, may only be used as a distinguishing factor if there are extremely special circumstances and the state had failed to prove this.

‘Discrimination on the basis of race, without objective and reasonable justification, is a particularly serious form of discrimination,’ Boele said. In addition, he said, there is a knock-on effect into wider society. ‘Dutch people with a skin colour other than white may feel unaccepted and that they are second class citizens because of this.’

In 2021, a lower court had found that the use of race or ethnicity could be a factor when considering who to check at border crossings.

Historic

‘It is a historic day,’ lawyer Jelle Klaas told the crowd following Tuesday’s verdict. He said the impact of the decision would be felt beyond the border police and would impact on other government organisations as well.

Money smuggler

Former Eindhoven city council member Mpanzu Bamenga who was pulled aside for extra screening at Eindhoven airport after he returned from a conference in Rome was one of the complainants. Bamenga – who was born in Congo – later found out that border guards thought he looked like a ‘Nigerian money smuggler’.

Bamenga told broadcaster NOS that the ruling ends a struggle that had lasted years. Skin colour, he said, ‘says nothing about whether someone is criminal or not. This is a victory for myself, for my children and ultimately for everyone in the Netherlands.’

The border police, who are part of the defence ministry, announced in November 2021, a month after the ruling in their favour, that they would stop using race as a selection criterion.

A spokesperson for the organisation said they were studying Tuesday’s ruling.