Some legal changes for Migrants

Dear Readers.

After a few months during which I moved to a new office location, no much exciting legal events occurred concerning migration law. However, a few important things happened.

Since it is important for the readers to have a quick overview of the changes, I have provided the most relevant information about them in this article. If readers need more detailed information, that can be provided later for each of these topics in a more detailed manner.

Change number one

One important change is that the Dutch High Court, the Raad van State, declared that some of the Dutch legislation is not legally binding because it is in conflict with binding EU law. For this decision, search on internet for ECLI:NL:RVS:2017:1109 and you will see it.

This judgement is extremely important for people whose application for authorisation of temporary stay (mvv) for family reunion has been rejected because of them having allegedly giving or withholding incorrect information in a (previous) application. Those people were told that they must wait for five years before they can successfully apply again. For those who were confronted with such a problem life must have been real hard.

Due to this judgement, the five year ban is in cases of family reunion no longer legally applicable. My advice to those concerned is to re-apply soon.

Of course one must then provide all information in a correct manner because providing incorrect information is in itself also a ground to reject an application. It is only the five year ban that has been declared to be in conflict with EU law, so rejection because of providing incorrect information in the new procedure is still possible.

Change number two

What I predicted in my article in the October 2016 edition happened. For single parents with a child of an EU nationality, there is the possibility to obtain a residential status because the most essential right these children have is to be raised in the European Union.

To be raised in the EU, the child must have at least one parent taking daily care of it. In the Netherlands, the Immigration Authority was extremely strict and I dare say it was far beside reality. Only if the other parent (always an EU national, not an irregular migrant) was dead or in jail, it was accepted that this other parent could not take care of the child. In all other cases, the idea was that the child could stay with the other parent so that the parent who was an irregular migrant could choose to leave the child behind. The Dutch High Court supported this point of view. It took a decision from the European Union to bring reality and humanity back in Immigration law.

However, on 10 May 2017, the High Court of the European Union gave an answer to the question raised by the Dutch Centrale Raad voor Beroep on 16 March 2015. Please search for ECLI:EU:C:2017:354 and you will find the English text of the answer. Read the whole document to see how it works. It is beautiful!

In that answer the High Court made it very clear that even if the other parent who is an EU national is not dead and not in jail and even declares to be willing and able to provide the day to day care for the child, that is not enough to assume that the child can stay with this parent. There must be a thorough assessment to establish what the best interests of the child require.

In reality this must lead to the conclusion that the child is entitled to the care of the parent that normally is providing the daily care for the child and to whom the child is bonded emotionally. That is normally the mother who in these cases happen to be a migrant without residential status. Now it is established that in general these mothers must be granted a status to enable them to take care for the child.

The Immigration Authority is entitled to ask from the migrant that information is submitted from which follows that the best interest of the child requires that the mother is granted permission to stay but cannot be reject any longer without sufficient investigation of the case.

In reality this means that all those irregular migrants who provide the daily care for a child with the EU nationality and who have been rejected before, should apply again, but it should be a thoroughly prepared application.

Change number three

In cases of family reunion, it is often the case that the partner or spouse who is living in The Netherlands (hereafter the referent) does not have sufficient and durable income.

The income is sufficient when it at least equals the minimum income for a fulltime job which is the moment of € 1.551,60 before taxes. The income is for an employee durable when it at least will last for a full year after the date of the application for family-reunion. Since nowadays many people are working on temporary contracts, there was an exception to this rule. If one had been working for three years in a row and had work ahead for at least half a year that was also accepted.

What is changing now is that will no longer is required that one has been working for three years but that period will be shortened to one year. For those who want family reunion and have been rejected because they did not have a history of three years of work, it might be wise to re-apply.

How to get information?

For those who want to make any kind of application it is good to make inquiries first.

A good source of information is Het Juridisch Loket. Go to www.juridischloket.nl for information and call the loket for advise and if needed an appointment. Also one can visit www.ind.nl for more information about the requirements.

Also an option is to connect with me on LinkedIn. If there are relevant changes I will post a message for you to be up-to-date.

Why gathering information if I can ask a lawyer?

It’s always good to be inquisitive and self-reliant. Why depend on others if you can rely on yourself? However, after gathering information one might want to visit a lawyer for the procedure. Such a visit is more useful if one has some knowledge already otherwise one visits the lawyer and gets bombarded with information. If one is informed and prepared, this information is much better to be understood, so my advice is to prepare.

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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