Potential changes in immigration law

Dear Readers.

With my articles in The African Bulletin, I often try to inform the readers about recent changes in migration law and sometimes to look forward to future changes. In this article I will ask the readers’ attention for such potential changes. Do not get carried away. Nothing has changed yet; all there is is a perspective on change in particular cases.

For whom is this article?

This article is relevant for those irregular migrants who are born in The Netherland or arrive here at a very young age. Most of them are now young adults and because of their education and long term stay they are very much integrated in the Dutch society. Most of them never returned to the country of which they hold a nationality. However when they applied for a residence permit based on this integration, it was rejected, often time after time.

Why these young adults did not get a permit?

Immigration is not something that is encouraged by the government. Policy is that no permits will be issued unless there is a genuine national interest by granting such a permit or when international law obliges The Netherlands to grant a permit.

In the case of these youngsters, there is no national interest at stake, so they only can hope for international law to support their claim to grant a permit. Most of the times such an application for a permit is based on article 8 of the European Treaty for Human Rights that also protect someone’s private life. However, it is not easy to qualify for a permit on this basis because article 8 does not provide a clear and direct claim on a permit. On the contrary, there are many ifs and buts and a balance of interests applicable.

The reason for that is simple. States are allowed to regulate immigration and to reject a migrant application if that is in line with the interest of the state and in conformity with the law. The interest of the state usually outweighs the interests of the irregular immigrant. That means the outcome of this process is not normally not in the migrants favour because the state has a very substantial and also widely accepted legitimate interest by limiting immigration and the migrant usually choose to enter and stay in the country without permission.

The migrants’ choice to ignore the national laws concerning immigration can be held against him and as a rule irregular stay does not lead to a right to stay, so that in these cases when interests are being weighed, the irregular migrants interest is outweighed.

This rule is not fully applicable to those who were born or brought into The Netherlands because they did not have any influence on the fact they arrived and stayed here so reasonably that cannot be held against them to justify rejection of their request for a permit.

Why are their requests rejected then?

Assuming that there are no other good reasons to reject their requests, the main argument against granting a permit is to prevent what can be described as chain-migration. If one of these youngsters is granted a residence permit, this might lead to more migration. The young adult might claim a residence permit for other family members who at that moment do not have a residence permit. Since chain-migration is against the interest of the state the states interest to reject the permit usually outweighs the interest of the youngster to get the permit. Up to now this is the most important argument on the basis of which the youngsters are being denied a permit.

Did something change about that?

Maybe in future there will be a change. The High Court in The Netherlands (Raad van State) on 28 August 2017 gave a judgment that might be relevant for cases like these. For the text of the judgment go to the web and search for ECLI:NL:RVS:2017:2299.

In that judgment in my opinion the Raad van State rules that when a permit is granted to one young adult irregular migrant, from that moment on, is a regular migrant. The other irregular residing family members cannot claim a right for a residence permit to stay with the legalized family member or that article 8 of the European Treaty for Human Rights requires granting a permit on other grounds.

Is that a change?

In my opinion, that means that the main argument against granting a permit to irregular migrants who grew up here, lost much of it relevance. The main argument against granting a permit in order to prevent chain-migration seems to be eliminated by the Raad van State. Again, there is no formal change in the rules or the policy concerning young adults who grew up here but in my opinion it is more worth trying to apply for a status than before now.

What to do and how to apply?

From young adults who grew up and went to school in The Netherlands, we may expect they can be inquisitive and self-supporting. My advice is that they prepare an application. To see forms and how to file an application, see www.ind.nl which is the site of the immigration authority. For free of charge support and advice, you can turn to Het Juridisch Loket at www.hetjl.nl. Of course you can seek the assistance of a specialized lawyer, but for applications like these there is no subsidized legal aid available. For that reason be aware that a serious lawyer cannot file a well prepared application without charging a reasonable fee.

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