On 13 and 14 March 2019 the CJEU issued judgments in two cases, with regard to which the Migration Law Clinic has written an expert opinion. One judgment concerns evidence in Eritrean family reunification cases. The other concerns withdrawal of a family reunification and long term residence status on the basis of the fraud committed by a family member.

The judgment of 13 March 2019 concerns a request for family reunification by an Eritrean woman with a minor of which she is allegedly the guardian and who resides as a refugee and without family ties in a third country. 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. The Migration Law Clinic argued in its expert opinion that the IND’s rejection of the explanations of Eritrean sponsors for the lack of official documentation is not based on sufficient and reliable legal sources and country of origin information. Moreover, it argued that an evidentiary policy only accepting a certain type of ideal evidence and blaming the refugee for not showing that it was absolutely impossible to obtain such evidence violates general principles of EU law.

The CJEU ruled that EU law precludes that in the circumstances of this case the application for family reunification is 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”.

The judgment of 14 March 2019 concerns 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 Administrative Jurisdiction Division of the Council of State (AJD) asked 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 of the Migration Law Clinic addressed amongst others the acquirement of stronger rights after a lapse of time and the meaning of the terms ‘fraud’ and ‘withdrawal’. The CJEU answers the question of the AJD in the affirmative: the Family Reunification Directive and the Long Term Residents Directive allow the State Secretary to withdraw the residence permits of the mother and son, even if they were not aware that the father had committed fraud.  In the context of the Family Reunification Directive ‘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’ should take place.