New EU law favours Migrants & EU Children

Long-term IrregulaarBy A. G. Kleijweg*

Dear Readers,

In the April 2016 edition of The African Bulletin I wrote that I expected a positive change in immigration law for for the irregular immigrants who are a single parent and have the actual daily care for a child with the EU nationality. It appears that I was right.

What is happening?

This moment of change is coming close, and since 08 September 2016, things have been unfolding as expected. On that date, the Advocate General of the EU court gave a legal opinion on how to apply the relevant EU legislation. This opinion is very much in favour of the migrants and the EU children. For the texts of the opinion, check the internet for ECLI:EU:C:2016:659.

The legal opinion is likely to become the basis of a judgment of the EU court and then EU law must be applied in conformity with the judgment. That will take some time, but it’s very likely to happen.

For which people is this article relevant?

This article is meant for irregular migrants that are single parents providing the daily care to a child with the nationality of a country that is a member of the European Union, hereafter “an EU country”. This of course includes children with the nationality of The Netherlands.

If the child does not have a EU-nationality but is  the child of a man with an EU nationality, it is likely the child can also obtain that EU nationality through acknowledgment by the father or through a legal procedure for the establishment of the fatherhood. Ask your lawyer for advice on it.

The parent that is providing the daily care for the child with an EU nationality in most cases must be granted permission to stay in The Netherlands to continue to provide for the child. That is a huge improvement on the situation as it was in the past.

Because of the restrictive immigration policy in The Netherlands up to now, most of the applications for residence to stay with a child with an EU-nationality were rejected. Even with an appeal against the rejection, including an appeal to the highest court in The Netherlands, one did not get a permit.

In the light of the coming judgment of the EU court it is likely that many of these rejections are not in line with a correct application of EU legislation. Therefore it has became realistic to apply again and that is my advice.

A warning

There are still a few silly people who think that making babies entitles them to a residential status. They are very wrong. It is a form of child abuse and it will not lead to a permit.

What to do next?

Those who have the daily care of a child that has an EU nationality or is the child of a person who is of EU nationality, should (again) apply for a document that proves that they are entitled to stay in The Netherlands.

The fact that one might have been rejected before is not relevant anymore once the EU court rules as suggested by the Advocate General.

Since that is very likely to happen, it is advisable to start a new application procedure for a residential status to stay with and care for ones child with the EU nationality.

If your child does not yet have the nationality of an EU country but the father is an EU national, you should contact a lawyer to find out whether the child can obtain an EU nationality like the Dutch nationality.

What if you and your Dutch child are living outside of the EU?

It was only a few years ago that single parents would not get a residence permit to stay with their Dutch child at all. At the moment, the rules are less restrictive but still many people were denied a permit. So the conclusion must be that a significant number of people gave up and returned “home” and are now living with their Dutch child somewhere outside the EU.

In my opinion these people residing outside the EU can apply for a residential status in The Netherlands as long as their children are under eighteen years old. It is therefore wise to contact a lawyer to explore the options for an application.

What can we do for you in matters like these?

For this kind of application, having a skilled assistance is desirable. Part of the work you can do yourself is the gathering of information. The best thing to do is to gather all old paperwork of the previous immigration procedures and procedures about the child, divorce and so on. Those papers hold valuable information for your new procedure and can help save valuable time and money. On our part, we can help you with preparing and  filing a new application, finding out the possibilities for establishing the fatherhood of the child and so on.

Want to visit our office?

Of course our office does not only practice immigration law, but also family law, criminal law labour law and so on. Since several lawyers work in our office with their own specialism, it is important to make clear what the problem is, so an appointment can be made with a lawyer that is qualified to handle your case. Readers are therefore welcome to visit our office for FREE consultation and for support with the application. Have a look at our website www.skv-advocatenkantoor.nl to learn more about our office. For an appointment call 070 427 3215 and explain to our Secretary what your question is. To learn more about our office, you can also take a look at our web-site: www.skv-advocatenkantoor.nl Do not hold information back because our Secretary will decide if and when an appointment is possible and which of our lawyers is best qualified for the specific problem. When you come to the appointment, bring all information that is available. Only then can we judge the case and do make good use of the time. *A.G. Kleijweg. Balen van Andelplein 2e, 2273 KH Voorburg – 070.427.3215 – kleijweg@skv-advocatenkantoor.nl / mail@skv-advocatenkantoor.nl

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