By A. G. Kleijweg*
This article is intended to make readers aware of an expected positive change in immigration law. Since this article is about the law governing the European Union, hereafter the EU, it is not only relevant for readers in The Netherlands but applies also in other member states.
For whom is this article relevant?
This article is meant for the irregular immigrants who are a single parent and have the actual daily care for a child with the EU nationality or for a child who is not yet an EU national but whom the other biological parent is an EU national. Based on that, the child can likely obtain the EU nationality.
If this single care providing parent is being expelled from the EU, the child will have to follow the parent, and thus will effectively be forced out of the EU. That is against the basic rules of the EU because an EU national as a rule is entitled to grow up within the borders of the EU. For that reason, in general the caring parent must be granted permission to stay to care for the junior EU national.
What is the situation in The Netherlands?
Immigration law in The Netherlands is very strict and the Immigration Authority is very reluctant to grant such permits. The official policy is that only if the other parent is absolutely unable to provide daily care to a child, for instance because the parent is dead or in jail, the permit will be granted. This is extremely harsh; what about the child?
Imagine you have a caring mother who is an irregular immigrant, and the father of the child left without notice, does not want to take care of the child and is often leading a lifestyle that is disputable. Now mother and child are told that they are free to make their choice – leave the EU altogether out of their own free will or leave the child in the Netherlands to live with the father, whether the child and the father like that or not, so the mother can return to her country of origin alone. This is a bizarre non-choice, against EU law because the child is being forced from the EU by offering a non-choice but also it is official national immigration policy.
In the last years, many people applied for such a permit, but often rejected with the courts ruling in favour of the Immigration Authority. In appeals, the Raad van State (the highest court in migration cases) found this policy correct and therefore saw no reason to ask the EU court for legal guidance concerning this matter. For a while that seemed to be the end.
What changed then?
Change started when the Centrale Raad voor Beroep (the highest court in non-migration cases) got involved. Being an independent court, it decided to ask the EU court for legal guidance in March 2015. No answer has yet been given by the EU court, but in another case there is a concept of a legal guidance dated February 2016 that answers all questions and more.
From this, it becomes obvious that the single parent, having the actual daily care over a child with the EU nationality should not be expelled, unless there are exceptional reasons justifying it.
According to the EU-court an exceptional reason can be that the parent who is having the daily care for the child is a real criminal. That is indeed a legitimate conclusion, in line with common sense.
What does this mean for the situation in The Netherlands?
It is clear that the single parent, having the actual daily care over a child with the EU nationality should not be expelled, unless there are exceptional reasons justifying that.
The fact that the other parent – not caring, not willing to care and not capable to care – is not dead or in jail, is a common situation and therefore cannot be an exceptional reason that justifies expelling the parent. So, it is time for a change of the immigration policy in The Netherlands and some other restrictive EU countries. Rule should be that those single parents from a child with an EU nationality should get permission to reside unless there are exceptional reasons that justifies rejection of such permission.
What to do then?
First of all I want to wake up those who think that making children entitles them to a residential status are very wrong. It is child abuse and will not lead to a permit. Only those who have the daily care for a child that has an EU nationality or is the child of a person who is of EU nationality, are affected by this expected change in migration law.
People that applied in the past for a permit as mentioned above and got rejected are advised to apply again, although their cases did not change, the rules that are applicable are likely to be in their favour.
What can we do for you in matters like these?
For this kind of application you normally do not need a lawyer. Unless you have a file with some complications in it, I would say, why not do what you can do yourself?
You can gather information via www.ind.nl and file the application with the help of friends and family. Of course a lawyer can help you with this application, but there is no subsidised legal aid available for filing such an application, so you have to pay the lawyer for the service.
That is not so bad, because filing the application does not take much work and therefore does not cost much. Only when the the application is rejected do you really need a lawyer quickly, so contact your lawyer right away then.
What to do when you want to visit our office?
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