Author
Refugees and subsidiary protection beneficiaries can apply for family reunification under the same conditions.
Family members that are eligible for family reunification are the spouse and registered or unregistered partner, if there is a sustainable and exclusive relationship. Minor children and young adult children (aged between 18 and circa 25 years old) who still belong to the family of the parents are also eligible for family reunification.[1] This applies to biological and foster or adoptive children or children from a previous marriage from one of the parents. Lastly, the parents of an ‘unaccompanied minor’ in the meaning of article 2(f) of the Family Reunification Directive qualify for family reunification. Since the CJEU judgment of 12 April 2018, persons that are minor while applying for asylum are considered minor in the meaning of article 2(f) of the Family Reunification Directive (Directive 2003/86) even when they reach the age of 18 when they are eventually granted the asylum status and apply for family reunification.[2]
The judicial framework that is laid down in the Alien’s Act and policy rules is supplemented by a large number of so-called Work instructions and Internal information messages. These are not policy rules, but instructions for employees of the IND to effectuate policy in an unambiguous matter.[3] In 2023, the IND made public the general instructions for handling applications for family reunification by holders of an asylum permit, in order to become more transparent.[4]
Three-month time limit
Beneficiaries/holders of an asylum residence permit can make use of a more favourable framework for family reunification. This framework contains less strict conditions for family reunification in comparison to the regular framework. In order for an application to be considered within this framework, the beneficiary has to apply for family reunification within 3 months after being granted asylum. In the favourable framework there is – for example – no income requirement.[5]
If the beneficiary fails to apply for family reunification within 3 months, they will have to apply for regular family reunification, meaning they will have to meet stricter requirements like a minimum income. [6] To secure/ safeguard this three-month-term the application should be filed timely, even if it is incomplete. An application can be completed after it has been filed. However, after the sponsor receives a ‘rectification of omission’ letter stating what information and supporting documents are missing, the application must be completed within 4 weeks.[7]
In its judgment of 7 November 2018, the CJEU ruled that the time limit of three months in which the application has to be lodged in order to enjoy the more favourable provisions for refugees, is in accordance with the Family Reunification Directive. The Court further established that no individualised assessment as in Article 17 of the Directive has to be made when the time limit has been exceeded.[8] However, the Court also ruled that legislation should lay down rules in which particular circumstances render the late submission of the initial application objectively excusable. In addition, member states should ensure that sponsors recognised as refugees continue to benefit from the more favourable conditions for the exercise of the right to family reunification applicable to refugees, specified in articles 10 and 11 or in article 12(2) of the Directive.
To date, this has not yet been secured in legislation. The legislative proposal dated 23 September 2016 which involved extending the time limit for applying for family reunification from 3 to 6 months and the decision period from 6 to 9 months, was been withdrawn after the ruling of the Court.[9]
A new legislative proposal was submitted in April 2023.[10] This proposal extends the decision period from 6 to 9 months and lays a legislative basis to determine a late submission of an application objectively excusable. The aspects of the Court ruling have been included in Works instructions:
- Work instruction 2023/2 includes that a late submission may be considered excusable. Factors taken into account are: the number of days of exceedance (less than two weeks is excusable), the efforts the sponsor has demonstrated to file the application and the exceptional circumstances causing the late submission.[11]
- Work instruction 2022/7 includes that when the sponsor holds an asylum residence permit, proving family and identity ties in the regular family reunification procedure is the same as in the more favourable procedure for asylum status holders.[12]
- Work instruction 2021/7 includes that if beneficiaries of international protection submit a regular application for family reunification within the three month time limit, they have to be exempted from the income requirement.[13]
In practice, there can be difficulties in applying for family reunification within the three-month-time limit due to misinformation or a high influx of asylum seekers, and relocations between numerous accommodation centres. According to UNHCR, imposing this term does not sufficiently take into account the specific situation of beneficiaries of international protection and the circumstances that have led to the separation of the family.[14] UNHCR primarily recommends that no time limit for submission should be imposed. In case a time limit is maintained, the IND should adopt a flexible approach, such as allowing the sponsor to submit a partial application or timely notification which can be completed at a later stage.[15] In the Dutch context this proposed flexible approach is being applied.
Young adult children policy
The Alien’s Act and policy rules contain a provision for family reunification of a parent (sponsor) with their young adult child.[16] This means that a young adult is eligible for family reunification if they (1) are a young adult, (2) live/lived with the family at the time the sponsor entered the Netherlands, (3) do not provide for their own income and (4) have not formed a family of their own or take care of a child. If one of these conditions are not fulfilled, the young adult policy does not apply, unless this is caused by reasons beyond control, such as a forced flight of the person involved.[17] However, the Council of State ruled that the State Secretary may also consider a family tie to be broken if a young adult child – who was forced to flee – has been living separately for a long time and has demonstrated to ‘shape’ their life independently.[18]
Proof of identity and family ties
In its judgment of 26 January 2022,[19] the Council of State set out a new integral assessment framework for proving identity and family ties in family reunification cases. Until this judgment, identity and family ties had to be proven or at least made plausible by official documents, and in absence thereof, with sufficient unofficial documents or explanations as to why no official documents were available. Only if there were sufficient unofficial documents or plausible explanations, DNA-research would be done and/or interviews would be held. However, if unofficial documents were not sufficient and/or explanations were not considered plausible, the immigration service would reject the application without further research. In an earlier judgment, the Council of State ruled that this policy was in accordance with the ruling of the CJEU of 13 March 2019.[20] However in its judgment of 26 January 2022 the Council of State set out a new assessment framework, entailing the followings:
- The State Secretary can no longer differentiate between official and unofficial documents. All documents, regardless of their nature or status, must be included in the assessment. However, the State Secretary may, with motivated reasons, assign a different probative value to the documents submitted and attach different importance to explanations given for the lack of documents.
- The State Secretary has to make an integral assessment of all the documents submitted and statements made, and other relevant elements of the case like for example the age and gender of the family member and the administrative practice in the country of origin. The requirements set by the IND for the evidence provided, must be proportional to those elements.
- Unlike before, the IND has to make a motivated assessment whether there is reason to give the sponsor the benefit of the doubt. Like for example in a situation where there is only a beginning of evidence, but there are no contraindications (like a false document) and other relevant elements are in favour of the sponsor. The benefit of the doubt can lead to two outcomes: the approval of the application or further investigation of the application (such as DNA research or an interview).
- The interests of minor children plays an important role in this. This means that unlike before, if the application cannot be approved, further investigation (such as DNA research or an interview) is indicated. National policy was adapted to this judgement,[21] and a new Work instruction has been published.[22]
There are still issues in cases where the documents submitted are considered as most likely not real, not originally issued, not authentic, false or falsified. Documents are examined by the office of the immigration service specialised in document research, the Identity and Document Investigation Unit (Bureau Documenten).
In line with the new integral assessment, the negative outcome of document examination is taken into account as a contraindication in the assessment of all elements. How much weight is given to this contraindication depends upon, inter alia, the conclusion of the Identity and Document Investigation Unit (which established whether the document is real, false, falsified, issued unauthorized etc.) and the administrative practice in the country of origin. In principle, a false or falsified document heavily weights in detriment of the sponsor.
There are three ways to dispute the conclusion of the Identity and Document Investigation Unit. First, it is possible to consult a contra-expert that can research the document and provide a conclusion about its authenticity. However, this is not possible if there are no contra-experts available for documents from a certain country. This is the case for example for Eritrean documents. In a case before the Regional Court Zwolle,[23] the court ruled that the sponsor had made plausible that no contra-expert was available to research the documents from Eritrea. Considering the principle of equality of arms, the State Secretary had to perform an ID-interview to compensate for the imbalance between the two parties. However, this decision was overruled by the Council of State.[24]
According to the Council, the principle of equality of arms does not require to compensate the sponsor, as there were additional ways to dispute the conclusion of the Identity and Document Investigation Unit.
Secondly, a way to dispute the conclusion of the Identity and Document Investigation Unit, is to give a plausible explanation on how the document was obtained. However, according to the policy, the mere statement that the sponsor was not aware that the document was false or forged, or that the document was obtained through a third party, is not considered as a valid justification.[25] This sets the threshold to oppose the conclusion at a very high level. The sponsor has to provide a detailed and plausible explanation that they have acted in good faith and had no reason to expect that the intermediate party he approached would provide false documentation. This explanation has only been considered plausible in limited cases, which did not reach the court.
The third way to oppose the conclusion is to give concrete reasons to doubt on the merits of the negative conclusion of the document. However, the reports from the Identity and Document Investigation Unit contains very limited information for reasons of public order. Because of the limited informationprovided, it is very hard to give concrete leads for doubt about the report. Only if the sponsor has given concrete reasons to doubt of the report, the State Secretary has the obligation to verify how the Identity and Document Investigation Unit drew the conclusion on the authenticity of the document, by requesting access to the underlying documents. The State Secretary may also need to verify how the conclusions were drawn, to assess whether the reasoning therein is understandable and the conclusions drawn are consistent with it. The State Secretary is not required to share the confidential information with the sponsor. He does have to inform the sponsor, if – and to what extent – he endorses the conclusions of the Identity and Document Investigation Unit after examining the underlying documents, or obtaining further information from the Unit. As the underlying documents are not shared with the sponsor, the process’ transparency is limited, and the final decision is difficult to oppose.
Family reunification procedure continues even if the family member enters the Netherlands during the procedure
The Council of State has ruled that the mere fact that a family member has entered and stays in the Netherlands during the family reunification procedure, is not a ground to reject the application.[26] In other words, the family reunification procedure continues and may lead to approval and issuance of the derived asylum permit to the family member.
Measure of cabinet on family reunification in response to the reception crisis
On 26 August 2022 the Secretary of State announced several measures in response to the reception crisis.[27] One of the measures concerned a waiting time to issue a visa to the family member, even if the application for family reunification was already approved.[28] It entailed that if housing (other than an accommodation centre) was not available for the family member in the Netherlands, the IND would suspend visa issuance to the family member until housing became available, or at the latest until six months had passed since the approval of the family reunification request. The maximum waiting time was set at 15 months, from the date of application for family reunification to the date of visa issuance. . After announcing this measure, several organisations pointed out that it was in violation of the Aliens Act, the Family Reunification Directive and the EU Charter of fundamental human rights.[29] The Council of State finally ruled on 8 February 2023 that the measure was indeed unlawful.[30] The measure, which was already suspended since January 11th, was finally abolished.
Visa issuance
In 2023 problems regarding waiting times for visa issuance at the Dutch embassies did not occur to the same extent as the years before. The waiting period at the embassy in Lebanon (which was damaged in the bomb blast of August 2020) had already been reduced in 2022. However due to the Gaza war, the embassy has suspended its services as of October 2023. An exception was made for family members that were already in Lebanon, however family members that were still in Syria were requested to go to Dutch embassies in Jordan, Iran or UAE for visa issuance.
Visa issuance at the Dutch embassy in Sudan is also suspended due to the security situation since April 2023.
Positive news is the pilot set up by the Ministry of Foreign Affairs to issue visas at the Dutch consulate in Erbil, Irak. As of September 2023, a limited number of family members can go to the consulate. Although the pilot is applicable to any nationality, it mainly concerns Syrian nationals.[31] The waiting time at Erbil has however increased up to several months, due to its limited capacity.
Also positive news are the efforts of the Dutch Ministry of Foreign Affairs to get family members out of Gaza. The ministry started preparations for about 10 cases (around 35 family members) in December 2023. At the beginning of January 2024, the first families were admitted to cross the border into Egypt by the Israeli/Palestine/Egyptian authorities. Within 72 hours from the moment of entry, the family members had received their travel documentation and had left Egypt for the Netherlands. In this context it is noteworthy that IND gave priority treatment to the applications for family reunification of Gazan beneficiaries of international protection, because of the security situation in Gaza. The applications were approved by IND within 1-2 months after the war started.
Total number of family members arriving in 2023
The following numbers of persons were granted access to the Netherlands in the context of family reunification with the holder of an asylum residence permit:
| Family reunification with beneficiaries of protection in the Netherlands: 2023 | |
| Country of origin | Number |
| Syrian Arab Republic | 6,694 |
| Türkiye | 1,144 |
| Eritrea | 822 |
| Yemen | 256 |
| Stateless | 195 |
| Iran | 190 |
| Afghanistan | 119 |
| Unknown | 91 |
| Pakistan | 91 |
| Iraq | 74 |
| Others | 331 |
| Total | 10,125 |
Source: Asylum Trends, December 2023 main report, available at: https://bit.ly/3IhNM1p.
Subsequent application: If family reunification could not take place during the first application
For adult sponsors it is possible to file a subsequent application for family reunification with their core family members if the first application was either rejected or approved, but for some reason could not take place. The IND applies the concept of ‘securing’ the set time limit for family reunification as long as the sponsor holds an asylum permit. However, a UAM’s subsequent application for family reunifcation can be problematic. This is the case when the UAM at the time of the subsequent application has reached the age of majority or is no longer considered to be unaccompanied. The Council of State ruled that unaccompanied minors cannot lodge a subsequent application for family reunification within the favourable framework if they no longer meet the age condition or unaccompanied condition. The Council ruled that a former UAM can only file an application within the regular framework, in which the circumstances as to why family reunification could not take place during the first application should be taken into account.[32]
Other situations in which the regular framework applies
Apart from the abovementioned subsequent applications by (former) UAMs, there are other situations in which a sponsor needs to submit an application for their family member within the regular framework, even though they are beneficiaries of international protection. This applies for example to the UAM who submits applications for not only their parents, but also for their siblings. The latter applications always need to be submitted within the regular framework.
Another example is the reunited family member, who in turn wishes to submit an application for family reunification with a family member who was left behind. In this case, an application can only be submitted in the regular framework, unless the (new) sponsor first obtains their ‘independent’ asylum status, not derived from their initial sponsor.
[1] There is no strict age limit, in each case the immigration service has to make an individual assessment whether or not the person involved is still a ‘young adult’, see e.g. Council of State, 21 November 2022, ECLI:NL:RVS:2022:3343, available in Dutch at: https://bit.ly/3SSTyMW.
[2] CJEU, Case C-550/16, A, S v Staatssecretaris van Veiligheid en Justitie, 12 April 2018, available at: https://bit.ly/3HV87cM.
[3] The majority of these work instructions are publicly available. IND, Werkinstructies, informatieberichten en landeninformatie van de IND openbaar, available in Dutch at: https://bit.ly/4bUhSpf.
[4] IND, WI 2023/2 Instructies behandeling nareisaanvragen (asiel), available in Dutch at: https://bit.ly/3SzujOv, 7-8.
[5] The application is free of charge. Also, there are no integration requirements for family members of refugees.
[6] In the regular framework there are no integration requirements for family members of refugees. However, there is an application fee.
[7] Due to huge backlogs at IND it can take up to 6-12 months after submission before the sponsor receives the ‘rectification of omission’ letter.
[8] CJEU, Case C-380/17, ECLI:EU:C:2018:877, K and B v. the Netherlands, 7 November 2018, available at: https://bit.ly/48gJS3g.
[9] KST 19 637 nr. 2492, Announcement to withdraw legislative proposal, 17 April 2019, available in Dutch at: https://bit.ly/3UATsLo, and final withdrawing: KST 34544, nr. 6, Letter withdrawing the legislative proposal adjusting the terms in the family reunification procedure for refugees, 12 July 2019, available in Dutch at: https://bit.ly/42vdY1T.
[10] KST 36349, nr. 2, Wijziging van de Vreemdelingenwet 2000 in verband met verlenging van de beslistermijnen in asiel- en nareiszaken, Voorstel van wet, 2 May 2023, available in Dutch at: https://bit.ly/3w8SgVc.
[11] IND, WI 2023/2 Instructies behandeling nareisaanvragen (asiel), available in Dutch at: https://bit.ly/3SzujOv, 7-8.
[12] IND, WI 2022/7 Nader onderzoek in de nareisprocedure, inclusief DNA-onderzoek in de asielprocedure, available in Dutch at: http://bit.ly/3HJGpQC, 1.
[13] IND, WI 2021/7 Middelen van bestaan, available in Dutch at: http://bit.ly/3Rj7LAe, 21.
[14] UNHCR, No family torn apart, Challenges refugees face securing family reunification in the Netherlands and recommendations for improvements, 1 September 2019, available at: https://bit.ly/3nUI1wJ, 66.
[15] Ibid, 71.
[16] C2/4.1.2.1 Vc and IND, WI 2023/2 Instructies behandeling nareisaanvragen (asiel), available in Dutch at: https://bit.ly/3SzujOv, 15.
[17] Council of State, ECLI:NL:RVS:2019:4122, 9 December 2019, available in Dutch at: https://bit.ly/3Sxuzxi.
[18] Council of State, ECLI:NL:RVS:2023:1417, 13 April 2023, available in Dutch at: https://bit.ly/3wbCTvn.
[19] Council of State, Decision no. 202006519/1/V1 ECLI:NL:RVS:2022:245, 26 January 2022, available in Dutch at: https://bit.ly/3SSw7U0.
[20] CJEU, Case C-635/17, ECLI:EU:C:2019:192, E v Staatssecretaris van Veiligheid en Justitie, 13 March 2019, available at: https://bit.ly/3SWgNpC.
[21] Decree WBV 2022/11 of 1 April 2022 Amending the family reunification policy, available in Dutch at: https://bit.ly/49akptt.
[22] IND, WI 2022/7, Nader onderzoek in de nareisprocedure, inclusief DNA-onderzoek in de asielprocedure, available in Dutch at: http://bit.ly/3WOKVSo.
[23] Rechtbank Zwolle, 8 June 2020, AWB 19/3561, not published on a publicly available website.
[24] Council of State, ECLI:NL:RVS:2021:598, 17 March 2021, available at: https://bit.ly/48dlxvp.
[25] IND, Werkinstructie 2020/13, Nader onderzoek in de nareisprocedure, inclusief DNA-onderzoek in de asielprocedure, available in Dutch at: http://bit.ly/3HJGpQC, 4.
[26] Council of State, ECLI:NL:RVS:2023:3886, 20 October 2023, available in Dutch at: https://bit.ly/3UAkDpj and Information message IB 2023/59 Nareiziger is tijdens de nareisprocedure Nederland ingereisd, available in Dutch at: https://bit.ly/3HRlzOC.
[27] KST 19637, nr. 2992, Letter Ministry of Justice and Safety about the reception crisis, available in Dutch at: http://bit.ly/3wSuWId.
[28] Specified in the Information message: IB 2022/90, Uitwerking maatregel huisvesting bij nareis, available in Dutch at: https://bit.ly/3ThFdK5.
[29] See e.g. Commissie Meijers, September 2022, Reactie op kamerbrief inzake besluitvorming opvangcrisis, available in Dutch at: https://bit.ly/3jq4in9.
[30] Council of State, ECLI:NL:RVS:2023:506, ECLI:NL:RVS:2023:507 and ECLI:NL:RVS:2023:508, 8 February 2023, available in Dutch at: https://bit.ly/3HRlQkC and see the press release (linking to all three decisions), available in Dutch at: https://bit.ly/4c0Rfiz.
[31] Practice-based observation of the Dutch Council for Refugees, January 2024.
[32] Council of State, ECLI:NL:RVS:2020:2780, 23 November 2023, available in Dutch at: https://bit.ly/3wkhEqX (about the age requirement) and ECLI:NL:RVS:2020:2779, 23 November 2020, available in Dutch at: https://bit.ly/49uJ9wA (about requirement: unaccompanied).