The requirement of ‘sufficient substance’ of the relationship between father and child

This project concerns a series of cases in which the Dutch Council of State has ruled that there was no right to family reunification of a father with his biological child(ren), who was/were born out of wedlock (Council of State 18 July 2018, ECLI:NL:RVS:2018:2366ECLI:NL:RVS:2018:2466ECLI:NL:RVS:2018:2467ECLI:NL:RVS:2018:2469 and 10 September, ECLI:NL:RVS:2018:2940). The Council of State considered that there were no factual family ties between the father and the child.

This expert opinion addresses the question whether the Dutch implementation of Articles 4 and 16 FRD is correct. More specifically, it examines whether the requirement of a ‘real family relationship’ between a parent and a child, in the meaning of Article 16(1)(b) FRD is an additional requirement compared to the requirements of Article 4 FRD (the children must be minors, not married, dependent on the sponsor and under the custody of the sponsor). Moreover, if Article 16(1)(b) FRD does set an extra requirement, what is then the meaning of this extra requirement?

The expert opinion argues that the question of whether there is a ‘real’ family relationship is  not dependent on whether sufficient substance has been given to the relationship between the father and the child, before the application was lodged. It follows from Article 2(d) FRD and its application in the Chakroun judgment that Article 16 FRD cannot be invoked in order to prevent family reunification, if the relationship between the father and an older child will only develop in full depth after the arrival of the child.

The word ‘real’ in Article 16(1)(b) FRD should be read as opposed to the word ‘fake’ – implying that it must be assessed that there is no issue of fraud or deception. This is in line with the drafting history, where emphasis was put on the need to combat abuse of the right to family reunification. In that respect, Article 16(1)(b) FRD runs parallel to Article 16(2)(a) FRD and contains no separate requirement. This interpretation is in accordance with Articles 7 and 24 of the Charter of Fundamental Rights of the EU and relevant case-law of the ECtHR.

You can read the expert opinion here: MLC expert opinion sufficient substance family life def





[1] CJEU Case C-578/08 Chakroun [2010], paras 59-64.