On Wednesday, the Council of State (RvS) issued a decision by the State Secretary not to grant four children and their families a residence permit. destroyed. These are two decisions by former State Secretary Ankie Broekers-Knol (Justice and Security, VVD), which have too great adverse consequences for the children in question. The current State Secretary Eric van der Burg (Asylum and Migration, VVD) must reconsider the applications.
Broekers-Knol took the decisions on the basis of the so-called Final Regulation. Since 2019, this arrangement has made it possible for the State Secretary to grant a permit to children who have been in the Netherlands for a long time, but who do not qualify for a residence permit, subject to conditions. When a child receives a permit through this scheme, the rest of the family may also stay in the Netherlands. Conversely, no family member will receive a residence permit if one of the family members does not meet the conditions.
In the two cases that were reversed, the State Secretary applied a so-called contraindication. Although the children met the other conditions for the residence permit, the behavior of their relatives was decisive in not granting residence permits. For example, according to the State Secretary, in one case the mother could not prove her real identity and in the other case the father was a danger to public order because he had committed shoplifting.
disproportionate
According to the Administrative Jurisdiction Division, the State Secretary must always check in each case whether a refusal does not lead to disproportionate consequences for the child. He must therefore substantiate whether the decision is appropriate, necessary and balanced. Although the State Secretary has a lot of policy space in this regard, the administrative court must also test a rejection ‘more insistently’ if the argument put forward for the refusal concerns the behavior of a family member.
In both rulings that were assessed on Wednesday, the Council of State stated that not granting a residence permit to the families would have disproportionate consequences for the children. In a new assessment of the case, the State Secretary may not state again that the mother has not been able to prove her identity and that the father in the other case constitutes a danger to public order.
There are still 45 cases with the Council of State in which a residence permit has been refused on the basis of the Final Regulation. A spokesperson said that it is not a matter of disproportionality in all these cases. According to him, the number of cases in which this plays a role “does not exceed ten”. The spokesperson also emphasizes that Wednesday’s ruling will not necessarily affect these cases, because the circumstances in each case differ.