This project concerns preliminary questions which were referred to the Court of Justice by the Administrative Jurisdiction Division of the Council of State (AJD) on 20 September 2017. The case concerned a family, of which the father had obtained a residence permit in order to work in the Netherlands. The mother and son had obtained a residence permit for family reunification and, afterwards, as long term residents. When the State Secretary found out that the father had committed fraud in order to receive a residence permit, he withdrew the residence permits of the whole family. The AJD asks the Court of Justice whether the Family Reunification Directive and the Long Term Residents Directive allow the State Secretary to withdraw the residence permits of the mother and son, taking into account that they were not aware that the father had committed fraud. The expert opinion addresses amongst others the acquirement of stronger rights after a lapse of time and the meaning of the terms ‘fraud’ and ‘withdrawal’.
You can find the expert opinion here: Expert opinion withdrawal fraud def.final
“1. Article 16(2)(a) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification must be interpreted as meaning that, where falsified documents were produced for the issuing of residence permits to family members of a third-country national, the fact that those family members did not know of the fraudulent nature of those documents does not preclude the Member State concerned, in application of that provision, from withdrawing those permits. In accordance with Article 17 of that directive, it is however for the competent national authorities to carry out, beforehand, a case-by-case assessment of the situation of those family members, by making a balanced and reasonable assessment of all the interests in play.
2. Article 9(1)(a) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, must be interpreted as meaning that, where long-term resident status has been granted to third-country nationals on the basis of falsified documents, the fact that those nationals did not know of the fraudulent nature of those documents does not preclude the Member State concerned, in application of that provision, from withdrawing that status.”
The AJD issued its follow-up judgment on 16 July 2019. It ruled that the State Secretary did not effectively take into account the fact that the son and the mother did not know that their right to residence was based on fraud, in its assessment. With regard to the son, the AJD considers that the State Secretary should have examined whether the withdrawal of the residence permit would be balanced and reasonable, given the fact that the son has established ties with the Netherlands during his long stay there, while he was not responsible for the fraud. Moreover, the State Secretary should take into account that the son was educated in the Netherlands, studies at a university and has established social ties. The AJD’s holds that the CJEU’s judgment does not indicate that these circumstances should only be granted decisive weight if they should be considered ‘special’. According to the AJD, the withdrawal of the residence permit of the son is therefore contrary to Article 17 FRD.
However, this is different for the mother. The AJD considers that she has left China when she was 38 years old and that she reads, speaks and writes Chinese. She also visited China at least once per year during her stay in the Netherlands. The State Secretary has taken into account that it may be assumed that the mother is familiar with the culture, customs and habits in China. The AJD rules that the State Secretary has examined whether the withdrawal of the residence permit of the mother is balances and reasonable and that therefore it does not violate Article 17 FRD.