Parental Immigration through Human Rights Law - Is It Possible?

Family plays a big role in our life. Expats in the Netherlands often find it difficult to travel between the Netherlands and their home countries on a frequent basis for their nostalgic needs. Mynta Law wrote about applying for parental reunification under the EU law (see: How can elderly parents immigrate to the Netherlands (or the European Union)?)

In that article, there are two important conditions for parental reunification:

1. The adult child or his/her spouse must have the nationality of an EU member state and must be exercising the right to freedom of movement (ie. living in an EU country other than the country of nationality). If you are a Dutch citizen, for example, you must live outside the Netherlands, e.g. in Belgium; and
2. There is a financially dependent relationship between the child and the parent (supporting evidence needs to be collected over a period of  12 months or more).

For most expats the first condition regarding the acquirement of an EU citizenship is already a major hurdle, let alone moving to another EU country, in particular for those who already have rooted themselves in the Netherlands with their children and career in the Netherlands. Under the Dutch law, the legal basis for family reunification is the Immigration Act (Vreemdelingenwet 2000 or Vw 2000), which only applies to the reunification with the minor children and partner (unmarried, married or in a civil union) of the applicant. However, parents are not included in the scope of family reunification under the Dutch law. If one wishes to apply for parental reunification, the most feasible solution at present is to go through the EU law, precisely the article we just mentioned in the first paragraph.

Some of you may have heard that it is also possible to apply for parental migration without acquiring Dutch or EU citizenship or residing in another EU country. Indeed, it is theoretically possible under the human rights law. Under the European Convention on Human Rights (ECHR), all contracting states (including all EU member states, the United Kingdom and Russia etc.) are required to comply with the provisions of the Convention. A person in the contracting state who deems that their ECHR right has been breached by an authority may present their case in front of the European Court of Human Rights in Strasbourg, France. Inter alia, Article 8 of ECHR prescribes the right to respect for private and family life,  says as follows:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

*In case law, private life and family life are handled separately. This article discusses the latter for the purpose of parental reunification.

In case-law jurisprudence, the European Court of Human Rights (ECtHR) has given a rather broad interpretation of "private and family life" to protect these rights, for example, in the cases of surrogate births. The ECtHR has also imposed positive obligations on the contracting states, meaning that the governments and legislatures have to act proactively in order to fulfill the rights stipulated by the Convention. For instance, to protect family life the national governments cannot arbitrarily enforce the law to break up a family, but have to promote and guarantee these rights actively. Moreover, paragraph 2 of Article 8 ECHR prescribes certain limitations when the contracting state restricts the rights in question. The authorities shall not interfere with their rights unless necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

As a result, many expats or foreigners with permanent- or work purpose residence in the Netherlands wish to rely on the "family life" as referred to in Article 8 of ECHR to invoke their right to have their parents living with them in the Netherlands. Having it said, the number of successful applications for parental reunification on the basis of the ECHR is insignificantly few. The thumbs-down applications can be attributed to a rather subjective examination by the Dutch Immigration Department (IND), of whether the personal interest of the parental reunification in question outweighs the socio-economic interest of the Netherlands. In the United Kingdom, for example, the rights granted in the ECHR are divided into three categories, of which Article 8 ("private and family life") is regarded as a qualified right, meaning that this right can be restricted by the state given that a legitimate social interest is pursued, and the restriction in question is ‘necessary’. One may ask when should be a necessary restriction imposed and when not? In response the court considers as follows:

1. The legitimate aim of the government's policy in question is important, and therefore it can justify the restrictions of certain human rights stipulated in the ECHR;
2. Whether the restriction in question is enforced appropriately to achieve the objectives of the policy;
3. Whether the restriction in question is the only way to achieve the objectives of the policy and whether there is a less onerous solution to address the issue;
4. Whether the restriction is reasonable under all the circumstances and does it balance the interests of both parties, having regard to the interests of the individual and the interests of society.

The considerations of the court can be summed up as the so-called ‘Proportionality Test’. It follows that there are certain obstacles to relying on the ECHR to apply for parental reunification. Lately a client of Mynta Law shared her experience of relying on the ECHR to apply for her mother to live with her in the Netherlands, which has unfortunately been turned down by the IND.

Case Background

Mrs. Kim is a Korean citizen. She came to live in the Netherlands with her husband in 2010, and she is currently in possession of an EU long-term residence permit in the Netherlands. Her mother is 75 years old, widowed and lives on her own in a small city in Korea. Mrs. Kim had an elder brother who also lived in South Korea. He had always looked after their mother, visiting her weekly to help with cleaning and cooking, while Mrs. Kim sent monthly remittances to South Korea to pay for her mother's living expenditure. Tragically, in mid-2021, Mrs. Kim's brother died in a traffic accident, leaving Mrs. Kim's mother alone in Korea without supports. Matters worsened when a few months later Mrs. Kim's mother was diagnosed with an early stage of Parkinson's disease. Consequently, she would need both physical and psychological care. On the other hand, Mrs. Kim has rooted in the Netherlands and did not wish to live in another EU country, nor did she wish to apply for Dutch citizenship due to personal reasons. Therefore, Mrs. Kim tried to invoke section 8 of the ECHR ("family life") and helped her mother apply for family reunification under this ECHR provision.

Outcome

The IND declined Mrs. Kim’s application after assessing the personal circumstances of Mrs. Kim’s family and the overall social interests of the Netherlands. The crucial factor in the assessment is with respect to the personal circumstances. The IND first evaluated the issue as to whether the mother’s dependence on Mrs. Kim was more than normal emotional ties; then the IND looked into the issue as to whether the personal interests of the parents’ reunion outweighs the social and economic interests of the Netherlands as a whole. Unfortunately, through using this legal approach, the IND rejected Mrs. Kim’s application.

Reasons for the refusal:

1. The mother does not seem to need her daughter to take care of her in person

The IND investigated the domicile of Mrs. Kim and found that she has settled in the Netherlands since 2010 and has registered her address at the city hall all  the times. The system showed that Mrs. Kim’s main place of residence has always been within the territory of the Netherlands, including the period after Mrs. Kim’s brother passed away. Therefore, the IND contended that Mrs. Kim's mother was still being taken care of in Korea, or that she is capable to take care of herself independently.

2. The mother seems to have been taken care of by others

Mrs. Kim sends money to her mother regularly. The IND checked Mrs. Kim's and her mother's bank statements, and found that the whereabouts of the money was unknown. Although the money was remitted to South Korea, it was not directly wired to her mother's bank account. Thus, the IND suspects that Mrs. Kim’s money may have been remitted to institutions that take care of her mother (such as, nursing home and housework assistance agencies). The IND has therefore concluded that Mrs. Kim’s mother can actually continue living in South Korea through the assistance of these third parties, since she is not in a critical condition to live in the Netherlands. The IND also makes an additional remark. Even if Mrs. Kim envisions that her mother may need more care in the future, it shall not have any impact on this current decision.

3. There are alternatives to care for the mother

The IND states that there is no evidence that Mrs. Kim’s mother coming to the Netherlands to live with her daughter is the only way to conform to the mother's need for care. For example, the IND suggests that Mrs. Kim’s mother can seek help from local aid agencies in South Korea, or Mrs. Kim can send her mother directly to nursing homes for a better care.

4. The social and economic interests of the Netherlands outweigh the personal interests of Mrs. Kim’s reunification application

The IND reiterated deliberately that the current Dutch national policy on family reunification is limited to spouses, unmarried partners and minor children, not elderly parents. Therefore, if an application for parental reunification hinges on section 8 of ECHR, the IND will only grant such a permit under "certain exceptional circumstances" (uitsluitend in bijzondere gevallen). As for what is called an exceptional circumstance, it is assessed and decided by a decision officer of the IND. Often, learning from case law, the assessments of the IND can be rather subjective and biased. In Mrs. Kim’s case, the decision officer stated that the economic interests of the Netherlands are an important consideration to the Dutch government, for instance, whether the children are willing to support their parents financially, whether they will ask for social benefits, whether they would become a burden on the social assistance system of the Netherlands. The Dutch government would also take other factors into account, such as how the parents living in the Netherlands will affect the Dutch labour market, healthcare system, education, and government budget on infrastructure. Based on these factors, the IND declined Mrs. Kim's application, claiming that Mrs. Kim’s personal interests of applying for parental reunification do not outweigh the overall social and economic interests of the Netherlands.

5. The tie between Kim’s family and Dutch society

Considering that Mrs. Kim has been living in the Netherlands for more than ten years, and that she has established her family life and business in the Netherlands, the IND admits that Mrs. Kim has formed a certain connection with the Netherlands. However, Mrs. Kim only has the status of EU long-term residence in the Netherlands, so she cannot enjoy the rights of an EU citizen as referred to in article 20 of the Treaty on the Functioning of the European Union (TFEU), regarding the right to live in the European Union as a Union citizen. Art. 20 ensures that anyone with an EU nationality has the right to live in the EU. A significant case law derived from this article is the Chavez case, a judgement about parental reunification for parents who do not have an EU nationality but they have the right to abode in the EU by relying on their minor child who has an EU nationality (see article: Court of Justice: Holders of "Chavez" residence rights can obtain permanent residence permits).

Back to the case of Mrs. Kim: she does not have a Dutch passport nor could she exercise the free movement right, thus she cannot rely on the status of an EU citizen to invoke EU laws. Furthermore, her EU long-term residency status alone is not sufficient for her to use the EU law to apply for parental reunification. The IND later added that Mrs. Kim is a Korean citizen, and she can return to Korea to take care of her mother by herself. The IND contends that it may be a better option, as Mrs. Kim’s entire family is ethnic Korean, and has lived in South Korea for decades, so she should have a deep understanding of Korean culture. In comparison with the Netherlands, the IND deems that it is more suitable for Mrs. Kim to live with her mother in South Korea where they are likely to encounter fewer cultural conflicts. The IND, therefore, deduces that Mrs. Kim's mother has no connection with the Netherlands. Although Mrs. Kim herself has certain connection with the Netherlands, it is not impossible for her to return to South Korea to live with and care for her mother.

Human Rights Law  vs EU Law

From Mrs. Kim’s case we have a full picture of the assessment mechanism of the IND when evaluating the dependency between an elderly applicant and their adult children. It reveals the sheer amount of difficulties that applicants could face when applying for parental reunification under the ECHR. One may discontent the IND’s decision and decide to make an appeal before the court. In practice, jurisdiction of ECHR cases are to be heard in Dutch courts first. Only after all the domestic jurisdictions are exhausted, can the applicant then be eligible to further appeal to the European Court of Human Rights (ECtHR) located in Strasbourg, France. The average waiting time for ECtHR cases is about four to five years currently (unless the case in question involves imminent personal safety, slavery or torture). Also, as established in case law, the ECtHR grants the contracting states a certain degree of margin of appreciation (a legal doctrine where the courts in contracting states are allowed to have certain discretion powers under limited circumstances). Therefore, the success rate is quite unpredictable since all cases will be, theoretically, assessed on a case-by-case basis, let alone the time that an applicant will have to wait if he/she has an elderly parent that needs urgent care.

For the purpose of having legal certainty, EU law gives more stability and cases are assessed by more objective factors. Readers who are interested in applying for parental reunification may consider to rely on the EU law, by fulfilling the requirements in this article: How can elderly parents immigrate to the Netherlands (or the European Union)?

Contact Mynta Law

Should you have any questions about the issue of parental migration, please feel free to contact Mynta Law through filling out our contact form.