The ‘bewijsnood’ policy of the Dutch immigration service: A correct interpretation of the Family Reunification Directive or an unlawful procedural hurdle?

This expert opinion is about Eritrean asylum status holders in the Netherlands, who try to be reunited with their family members left behind. An asylum status holder can apply for reunification with his family left abroad, within three months following the decision granting his or her asylum status. One of the conditions for family reunification is that the family members prove their identity and the existence of actual family ties with the sponsor. Both the identity and the family ties are in principle established through official documents. However, the situation of the asylum status holder and his or her family members sometimes makes it difficult or even impossible to provide these documents.

Usually in cases where no official documents are submitted, it is possible to establish the identity and family ties through alternative evidence, for example unofficial documents such as religious certificates or non-documentary evidence such as DNA-investigation or identifying interviews. Since the beginning of 2016 the Dutch Immigration and Naturalisation Service applies a new policy, which implies that only if the IND has accepted that the lack of official documentation cannot be attributed to the applicant, it is prepared to take alternative evidence into account, like DNA testing or interviews. The IND assumes that Eritreans are generally able to obtain such official documentation. The stricter application of the Dutch evidentiary policy had led to considerable amount of rejections of Eritrean family reunification cases since the beginning of 2016.

This expert opinion examines whether the rejection by the IND of the explanation of Eritrean sponsors for the lack of official documentation based on sufficient and reliable country of origin information. Furthermore, it assesses whether the Dutch evidentiary policy, as it is applied in Eritrean family reunification cases, is compatible with the EU Family Reunification Directive.

After the publication of this expert opinion, on 14 November 2017 the district court of Haarlem has referred preliminary questions to the Court of Justice of the European Union (CJEU) concerning evidentiary requirements in family reunification cases (Case C‑635/17). AG Wahl issued his opinion on 29 November 2018. On 13 March 2019 the CJEU issued its judgment. It decided the following:

1.      The Court of Justice of the European Union has jurisdiction, on the basis of Article 267 TFEU, to interpret Article 11(2) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification in a situation such as that at issue in the main proceedings, where a national court is called upon to rule on an application for family reunification lodged by a beneficiary of subsidiary protection, if that provision was made directly and unconditionally applicable to such a situation under national law.

2.      Article 11(2) of Directive 2003/86 must be interpreted as precluding, in circumstances such as those at issue in the main proceedings, in which an application for family reunification has been lodged by a sponsor benefiting from subsidiary protection in favour of a minor of whom she is the aunt and allegedly the guardian, and who resides as a refugee and without family ties in a third country, that application from being rejected solely on the ground that the sponsor has not provided official documentary evidence of the death of the minor’s biological parents and, consequently, that she has an actual family relationship with him, and that the explanation given by the sponsor to justify her inability to provide such evidence has been deemed implausible by the competent authorities solely on the basis of the general information available concerning the situation in the country of origin, without taking into consideration the specific circumstances of the sponsor and the minor and the particular difficulties they have encountered, according to their testimony, before and after fleeing their country of origin.

Expert opinion Bewijsnood final version

Paper Günther Schröder, Eritrea Marriage

 

 

 

 

 

 

One thought on “The ‘bewijsnood’ policy of the Dutch immigration service: A correct interpretation of the Family Reunification Directive or an unlawful procedural hurdle?

  1. Pingback: Two judgments CJEU in ‘clinic cases’ | Migration Law Clinic

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