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 25 years old) who still belong to the family of the parents are also eligible for family reunification. 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.
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 his or her 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, he or she will have to apply for regular family reunification, meaning that he 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 incomplete 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. 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.
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. 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.
Proof of identity and family ties
Another bottleneck is the requirement that identity and family ties have to be proved or at least made plausible by official documents, and in absence thereof, with sufficient unofficial documents or explanations as to why there are no official documents. Only if there are sufficient unofficial documents or plausible explanations, DNA-research will be done and/or interviews will be held. However, if unofficial documents are not sufficient and/or explanations are not considered plausible, the immigration service will reject the application without further research. The Council of State has ruled that this policy is in accordance with the ruling of the CJEU of 13 March 2019. A related issue surges in case the documents submitted are considered as most probably not real, not originally issued, not authentic, false or falsified. In cases where there is a negative probability conclusion of the document, in principle, no further investigation would be carried out. Documents are examined by the office of the immigration service specialised in document research, the Identity and Document Investigation Unit (“Bureau Documenten”). 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, 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 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. 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. 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 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 results limited, and the final decision difficult to oppose.
Another topic of concern are the waiting periods for consular services. As an example, the waiting period for an appointment only to pick up visa at the embassy in Beirut, Lebanon, is around 9 months. Moreover, until the end of 2021, there were no possibilities to switch embassies to pick up the visa at another Dutch embassy. Currently, it is possible to make an appointment at the Dutch embassies in Caïro or Dubai. It remains unclear whether it is feasible in practice for family members to travel to these countries. Additionally, in Beirut interviews can only be done with family members that were registered in Lebanon before 2015 (UNHCR facilitates the interviews). This has resulted in cases that are now waiting for over two years for an interview, with no prospect for a solution.
Total number of family members arriving in 2021
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: 2021|
|Country of origin||Number|
Source: Asylum Trends, December 2021, available at: https://bit.ly/3KH3ZNI.
Subsequent application: If family reunification could not take place during the first application
In its judgments of 23 November 2020, 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 his or her own ‘independent’ asylum status that is not derived anymore from his or her initial sponsor.
 CJEU, Case C-550/16, A and S v. the Netherlands, 12 April 2018.
 CJEU, Case C-380/17, K and B v. the Netherlands, 7 November 2018.
 KST 34544, nr. 6, Letter withdrawing the legislative proposal adjusting the terms in the family reunification procedure for refugees, 12 July 2019.
 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.
 Ibid, 71.
 Council of State, Decision 201902483/1/V1, 16 September 2019.
 CJEU, Case C-635/17, E v the Netherlands, 13 March 2019.
 IND, Werkinstructie 2020/13, Nader onderzoek in de nareisprocedure, inclusief DNA-onderzoek in de asielprocedure, 4.
 Rechtbank Zwolle, 8 juni 2020, AWB 19/3561.
 ABRvS, 17 maart 2021, ECLI:NL:RVS:2021:598.
 IND, Werkinstructie 2020/13, Nader onderzoek in de nareisprocedure, inclusief DNA-onderzoek in de asielprocedure, 4.
 Council of State, Decisions 201906347/1/V1 (about requirement: minor) and 201900263/1/V1 (about requirement: unaccompanied), 23 November 2020.