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]
Three-month time limit
The beneficiary has to apply for family reunification within 3 months after being granted the asylum residence permit, in order to have their application considered within a more favourable framework for family reunification. This framework applies to holders of an asylum residence permit and contains less strict conditions for family reunification in comparison to the regular framework. There is no income and health insurance requirement if the beneficiary lodges the application within these 3 months.
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. To save this term the application should be filed timely, but it may be incomplete. The sponsor can complete the application once it is 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.
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.[3] 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 extending the time limit for applying for family reunification from 3 to 6 months and the decision period from 6 to 9 months, has been withdrawn after the ruling of the Court.[4] A new legislative proposal on the matter should however be presented in 2023.[5] This proposal extends the decision period from 6 tot 9 months. Also it should secure in which particular circumstances the late submission of the application is objectively excusable. Other aspects of the Court ruling have been included in Works instructions. Work instructions are not policy rules, but instructions for the employees of the INS to effectuate the policy in an unambiguous matter.[6] In Work instruction 2022/7 from 2 May 2022 is now included that proving family and identity ties is similar for the regular procedure when the sponsor holds an asylum residence permit.[7] In Work instruction 2021/7 from 15 June 2022 is included 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.[8]
In practice, there can be difficulties in applying for family reunification within the 3-month time limit due to misinformation or a high influx of asylum seekers, for example. 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.[9] 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.[10]
Proof of identity and family ties
In its judgment of 26 January 2022,[11] 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.[12] However in its judgment of 26 January 2022 he Council of State set out a new assessment framework, entailing the following.
The Secretary of State 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 Secretary of State 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 Secretary of State 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 INS for the evidence provided, must be proportional to those elements. Unlike before, the INS 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 contra-indications (like a false document) and other relevant elements are in favour of the sponsor. The interests of minor children plays an important role in this. This means that unlike before, there is not only a right to further investigation if the applicant presents substantial indicative evidence or plausible explanations about the lack of documents. Additional research can also be carried out if the benefit of the doubt principle gives rise to this. National policy was adapted to this judgement,[13] and a new Workinstruction has been published.[14]
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 contra-indication 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 court in Zwolle,[15] 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 Secretary of State for Justice had to perform an id-interview to repair the imbalance between the two parties. However, this decision was overruled by the Council of State.[16] 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. The second channel through which 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.[17] This sets the threshold to oppose the conclusion at a very high level. The sponsor has to provide a detailed and plausible explanation that he has 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 information provided, 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 Secretary of State has the obligation to verify how the Identity and Document Investigation Unit drew the conclusion on the authenticity of the document. For example, requesting access to the underlying documents. The Secretary of State 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 Secretary of State 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 results limited, and the final decision difficult to oppose.
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.[18] According to the letter, 7,200 of the 15,400 persons with an asylum status in the reception centres were family members (family members also receive an asylum status, see below under B2 status and rights of family members). The government does not consider it reasonable to issue visas to family members while housing is not available in the foreseeable future. That is why one of the temporary measures announced concerns family reunification, whose details have been included in the Informationmessage 2022/90.[19] The measure took effect on 3 October 2022. It entails that the INS will asses applications for family reunifications as usual and if all conditions are met, the application will be granted. If housing is available for family members, the decision will state that family members can make an appointment at the embassy to obtain their visa.[20] If however, housing is not available, the INS will inform the sponsor of the decision that their family members will only be able to obtain their visa once housing will be available, or at the latest after six months of the date of the decision. The maximum waiting time from the date of the application to actually issuing the visas is set at 15 months. The Secretary of State assumes an average processing time of nine months for the application (even though the legal decision period is of a maximum of six months) and a maximum of six months for issuing the visa after the positive decision. If in individual cases the 15-month time period elapses without suitable housing becoming available, the visa will be issued. The measure will apply until 31 December 2023 at the latest, as it will be revoked after this date. After announcing this measure, several organisations pointed out that it was in violation of the Aliens Act, the Family Reunification Directive[21] and the EU Charter of fundamental human rights.[22] According to officials of the Ministry of Justice and Security, the legal tenability of the measure was not certain.[23] On 5 December 2022, in a provisional ruling the Court in Haarlem established that the measure was incompatible with the Aliens Act and the Family Reunification Directive. On 22 and 23 December, in five cases different courts ruled that the measure was unlawful.[24] The Secretary of State appealed against three of these rulings.[25] The Secretary of State asked the preliminary relief judge of the Council of State to suspend the judgments of the courts pending the final judgment on the family reunification measure, but said request was rejected.[26] In both cases, the Court in the provisional proceedings found that the interest of the family members outweighs the interest of the Secretary of State not to implement the court rulings. The rulings of the preliminary relief judge mean that the family members of the two sponsors in these cases could immediately obtain permission to enter the Netherlands for family reunification. After the Administrative Jurisdiction Division held a court hearing on lawfulness of the measure on 12 January 2023[27], the Council of State finally ruled on 8 February 2023 that the measure was indeed unlawful.[28] The measure, which was already suspended since January 11th, was finally abolished.
Visa issuance
In 2021, there were very long waiting periods to access consular services. Especially at the embassy in Beirut (Lebanon), where the waiting period for an appointment to collect a visa was around nine months. At the beginning of 2022, waiting periods were reduced considerably by the embassy, and similar issues were not registered for the rest of the year. Previously, interviews in Beirut could be conducted with family members that were registered in Lebanon before 2015. From autumn 2022 however, IOM started to conduct interviews also with family members that are not registered in Lebanon.
Total number of family members arriving in 2022
The following numbers of persons had 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: 2022 | |
| Country of origin | Number |
| Total | 10,927 |
| Syrian Arab Republic | 7,238 |
| Turkey | 1,094 |
| Eritrea | 527 |
| Yemen | 377 |
| Stateless | 370 |
| Iran | 215 |
| Afghanistan | 159 |
| Unknown | 140 |
| Pakistan | 137 |
| Iraq | 130 |
| Others | 540 |
Source: Asylum Trends, December 2022 main report, available at: https://bit.ly/3lanW7u, 7.
Subsequent application: If family reunification could not take place during the first application
In its judgments of 23 November 2020,[29] the Council of State ruled that unaccompanied minors could not lodge a subsequent application for family reunification within the favourable framework if they no longer meet the age condition or unaccompanied condition. In the cases before the court, subsequent applications were lodged because, in one case, the parents were not able to leave their country to conduct DNA-research at the Dutch embassy. In the other case, the mother could reunite but the father had been missing. At the time of the subsequent applications, the minor had reached the age of 18 or was taken into care by his mother respectively. The Council ruled that only subsequent applications within the regular framework were open to these (former) UAMs. The Council ruled that the circumstances as to why family reunification could not take place during the first application should be taken into account in the subsequent procedure within the regular framework.
Other situations in which the regular framework applies
Apart from the subsequent applications by (former) UAMs, there are other situations in which a sponsor needs to submit an application for his or her 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 his parents, but also for his or her brothers and sisters. 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 that of 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, Decision 202102230/1/V1.
[2] CJEU, Case C-550/16, A and S v. the Netherlands, 12 April 2018.
[3] CJEU, Case C-380/17, K and B v. the Netherlands, 7 November 2018.
[4] KST 34544, nr. 6, Letter withdrawing the legislative proposal adjusting the terms in the family reunification procedure for refugees, 12 July 2019.
[5] Verbal communication by the Ministry of Justice and Security.
[6] IND, Werkinstructies, informatieberichten en landeninformatie van de IND openbaar, available in Dutch at: http://bit.ly/3HKI4pe.
[7] Available at: http://bit.ly/3HJGpQC.
[8] Available at: http://bit.ly/3Rj7LAe.
[9] 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.
[10] Ibid, 71.
[11] Council of State, Decision 202006519/1/V1, 26 January 2022.
[12] CJEU, Case C-635/17, E v the Netherlands, 13 March 2019.
[13] Decree WBV 2022/11 of 1 April 2022 Amending the family reunification policy.
[14] IND Workinstruction 2022/7, Nader onderzoek in de nareisprocedure, inclusief DNA-onderzoek in de asielprocedure, 2 May 2022, available in Dutch at: http://bit.ly/3WOKVSo.
[15] Rechtbank Zwolle, 8 juni 2020, AWB 19/3561.
[16] ABRvS, 17 maart 2021, ECLI:NL:RVS:2021:598.
[17] IND, Werkinstructie 2020/13, Nader onderzoek in de nareisprocedure, inclusief DNA-onderzoek in de asielprocedure, 4.
[18] KST 19637, nr. 2992, Letter Ministry of Justice and Safety about the reception crisis, available in Dutch at: http://bit.ly/3wSuWId.
[19] IND Informationmessage 2022/90, 3 oktober 2022, Uitwerking maatregel huisvesting bij nareis, available in Dutch at: http://bit.ly/3HN5zhh.
[20] The sponsor will have to inform the INS about whether the housing is suitable and provide a beginning of evidence for this, like a declaration of the municipality or a lease contract. The IND will then check with the COA whether the housing is indeed suitable.
[21] Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification.
[22] See e.g. Commissie Meijers, september 2022, Reactie op kamerbrief inzake besluitvorming opvangcrisis, available in Dutch at: https://bit.ly/3jq4in9.
[23] Appendix to Questions of Members of Parliament, no. 3940 on the intention to limit the right to family reunification, available in Dutch at: http://bit.ly/3Yddj1x.
[24] Regional Court Haarlem, 22 December 2022, ECLI:NL:RBDHA:2022:14102; Regional Court Middelburg, 22 December 2022, ECLI:NL:RBDHA:2022:13902; Regional Court Haarlem, 22 December 2022, ECLI:NL:RBDHA:2022:14104; Regional Court Arnhem, 23 december 2022, NL22.20578; Regional Court Amsterdam, 23 december 2022, ECLI:NL:RBDHA:2022:14097.
[25] Against the rulings of the Regional Courts in Amsterdam, Arnhem and Middelburg.
[26] Council of State, 29 December 2022, ECLI:NL:RVS:2022:4004; Council of State, 29 December 2022, ECLI:NL:RVS:2022:4003.
[27] See the press release in Dutch on the website of the Council of State, available in Dutch at: http://bit.ly/3l1FcLT.
[28] Council of State, 8 February 2023, ECLI:NL:RVS:2023:506, ECLI:NL:RVS:2023:507 and ECLI:NL:RVS:2023:508.
[29] Council of State, Decisions 201906347/1/V1 (about requirement: minor) and 201900263/1/V1 (about requirement: unaccompanied), 23 November 2020.