By A. G. Kleijweg*
This article is intended to make readers more aware of the fact that countries are not only ruled on the basis of national law, but that several sources of international law also can be relevant for the people living in that country. One of the most important sources of international law is the European Convention for Human Rights, hereafter referred to as ECHR. For more information just search the web and start with www.echr.coe.int.
The ECHR is applicable in many countries but certainly in the entire European Union, hereafter the Union. It is also relevant for migrants, including irregular migrants.
For who is this article relevant?
This article is aimed at the irregular immigrants who are born into that situation or who are brought into the country at a very young age. Basically, a generation of irregular migrants emerged who are born and raised here. They are fully and often highly educated and integrated in the country where they reside and never left the country. All that is missing is the residence permit. The immigration authorities of the countries they live in reject any kind of status for them, telling them to go home.
Of course there is the necessary control and restriction of migration, but this goes too far. Home is where they were born and raised! My thought is then, what to do in cases like these since doing nothing does not lead to a solution.
What is the situation in The Netherlands?
Immigration law in The Netherlands is restrictive and the Immigration Authority has the policy that the parents of the children are responsible for the existence of the situation because the parents brought the children into the situation. If the parents in any which manner would benefit from their irresponsible actions, that would encourage more of that kind of behaviour and the interest of the state requires that this should not happen. This is an acceptable and commonly followed policy so it is clear what the rules are. It sounds like a harsh policy, but ask yourself, who put this children in this position? It was not the state or the Immigration Authority, so much is clear.
Like I did before, I give a warning to those people who think that having children enhances their chances for a residential status. That is wrong, it is child abuse and it will not lead to a permit.
So the rule is, unless it is guaranteed that the parents will not benefit from it, a residence permit will not be granted to the young adult. Question is then when can the parents not benefit? It is certainly the case when they are dead, but is that the only possible option? Are there not several other situations where this “no possible benefit for parents” is applicable? Basically, in each case where a strong argumentation is available why the parents cannot benefit from a permit granted to the young adult, it is arguable that the permit can be issued. When is that so? For instance when the parents already have a residence permit but the child is still without a permit. When such an exception is applicable is hard to say, because there have not been much procedures about cases like these.
Are there changes?
Not really. In the past there was not even a consensus about the question whether a young adult that was born and raised here would have some kind of claim concerning a residential status. That seems to have changed because now the policy is that only if the parents cannot benefit, possibly a permit can be granted.
While I understand why the Immigration Authority sticks to its present policy, I also believe that it is often to quickly assumed that parents could benefit from the young adults permit and therefore that permit should be denied to the young adult. This is something that should be explored more because if that will not be done, the problem grows and lasts longer.
What to do then?
For those young adults, who are born or brought into irregular residence at a young age, it would be advisable to file an application for a residence permit on that basis. Of course one must explain the situation very well, and also explain why their parents cannot benefit from the requested permit and one must show ones integration. People that applied unsuccessfully for a permit as mentioned are advised to consider applying again.
My intuition is telling me that in the coming years there will be several judgements that will give more clarity about the question, when a permit like this must be issued and when it can be rejected. Be aware of the fact that it is just my personal intuition, not a legal fact or a certainty.
What can we do for you in matters like these?
Filing an application like this one does not really need a lawyer. People born or at least raised and schooled in The Netherlands, may expect that they can file the application themselves and know where to seek assistance. It is always best to be self reliant and inquisitive so this is a good opportunity.
You can gather information via internet www.ind.nl and www.juridischloket.nl. Maybe you can also get help from a social worker, friends and family. Since for an irregular migrant there is always a risk when one deals with the Immigration Authority it is required to seek a competent advice.
Of course a lawyer can help you with this application, but there is no subsidised legal aid available for filing such an application. However, a social lawyer will not charge too much for an experimental application like this so it should not cost too much.
Only by the time the application is rejected do you really need a lawyer quickly, so contact your lawyer right away then. Good thing is that by then subsidised legal aid is available.
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 – firstname.lastname@example.org / email@example.com