Positive EU Judgment on Single Migrant Parents

Dear Readers,

It is so much nicer to bring good news or positive information in this article. I already mentioned in the article of June 2017, that there was an important judgment from the EU Court in Luxemburg. Here, I will describe how to make practical use of this judgment since it will lead to a residential status.

For whom is this article?

The judgment concerns EU law and therefore is applicable throughout the EU; so this article is relevant for all readers in all EU countries, although I’m writing from a Dutch perspective.

Those I want to reach with this article are two groups of people.

First group are the irregular migrants in The Netherlands that are the single parents who provide daily care for their child with the Dutch nationality – even if they applied for a status before and have been rejected.

Second group are those who are not living in The Netherlands or EU, but who have a Dutch child and provide daily care for it anyway.

Another group consists of those who have a child from a Dutchman even if the Dutchman is denying fatherhood of the child. This fatherhood can be formally established so the child will be Dutch; making it possible to become part of the second group. For now it is wise for those in this group to read this article.

I will explain in the next article how someone residing in Africa can start this and other procedures in The Netherlands.

What is the judgement about?

On 10 May 2017, the High Court for the European Union judged that irregular migrants who are the single parents that provide the daily care to a child that is a Dutch national as a rule are entitled to stay in The Netherlands to enable the child to grow up in The Netherlands. For this judgement go to the web and search for ECLI:EU:C:2017:354.

The High Court made it crystal-clear that even if the other parent, an EU national is more or less available to provide the daily care for the child; it’s not enough to assume that the child can stay with this other parent. Basis for the conclusion that the residential status can be denied must be a thorough assessment to establish what the best interests of the child require.

In legal practice, it is widely accepted that for the child, it is best to grow up and be taken care of in The Netherlands by the parent that is normally providing the daily care and with whom the child has bonded emotionally.

It does not take a scientist to figure that out and in other EU countries that was already normal practice. Now, the Immigration Authority in The Netherlands is forced to apply the principles of common sense in cases like these.

How obtain a residential status?

Without going into technical details about the legal nature of the status, it all starts with the application for a status. If one is already living in The Netherlands, then one can apply directly for a permit. If one is living outside of the EU, one must apply from abroad in order to get into The Netherlands. In reality it is best to seek professional legal aid to file such an application. The reason for that is that applications like these are not a routine yet, so all is new and it would be good to use the services of an experienced lawyer.

How to file the application?

All those who meet the requirements should file (again if needed) a thoroughly prepared application. In this application one must explain clearly that one is the parent of a Dutch child; that you are providing the daily care for the child, and that you need a residential status in order to enable the child grow up in The Netherlands. Also one must provide as much as possible evidence that one is the single parent that provides the daily care to the child and that it is in the best interest of the child that you should provide the daily care. That can be proven in many ways but a statement from the school about your personal situation is a good start.

Of course the immigration authority is entitled to ask for additional information and evidence but it should be a realistic request. It is not the parent that must provide watertight evidence; one only has to provide the information required by the immigration authority to enable them investigate whether the best interest of the child requires that the parent is granted a residential status. If the application is done correctly and is complete, the immigration authority should not deny the request for a status without sufficient investigation of the case.

What are my chances?

If you are a single parent of a Dutch child, you take the daily care for the child and it is in the best interest of the child that you continue doing so, you are supposed to get a status. So in my opinion it is certainly worth the application but it should be a thoroughly prepared application.

How to get information?

For those who want to file this kind of application it is good to visit www.ind.nl for more information about the requirements. By the time this article is published, the IND should have provided the necessary information on their site. Also one can make an appointment for an informative visit to my office or ask questions by e-mail.

What to do when you want to visit our office?

Readers who are in need of legal support are welcome to visit our office for free consultation. This of course, only after you made an appointment. For an appointment call 070 427 3215 and explain to our Secretary what your question is.

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, Advocatenkantoor Kleijweg, Koninginnegracht 22 A, 2514 AB Den Haag
Tel: +31 (70) 317 7700 / www.advocatenkantooorkleijweg.nl / mail@advocatenkantoorkleijweg.nl

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