Unexpected Visa Rejection? There may still be routes forward

Have you had an unexpected rejection from the IND? Do you believe the IND was incorrect in their rejection of your visa application? In certain circumstances, the IND may issue an incorrect rejection due to human error, misapplication of EU law, or policy changes. If this happens to you, there are ways to remedy the situation. This article will outline a few examples of application rejections that were unfounded and eventually overturned.

Residence Gap for EU Long Term Residency Applications

A common incorrect rejection that applicants can receive from the IND comes in response to an application for an EU Long Term Residence Permit. The conditions laid out in Article 45b of the Aliens Act 2000 (Aliens Act) are clear that for a successful application, the applicant cannot have a residence gap and must have been living in the Netherlands continuously for 5 years. The IND has consistently incorrectly applied Article 45b in its decisions against applicants with more complex residence histories. Applicants who have had a residence permit expire whilst having another application pending are told that this situation has caused a residence gap. Fortunately, this is not correct for the purpose of EU long-term residency. Foreign nationals can have a gap between residence permits as long as that gap is covered by an ongoing application or other type of procedural stay as provided for in article 8, sub f and h of the Aliens Act 2000. Though this period of time would not count towards the 5 year requirement, it also does not count as an interruption of lawful residence. This is confirmed by the consistent case law of the Administrative Law Division of the Council of State (hereinafter to be referred to as: the Division), including the Division's ruling of 2 April 2012 (ECLI:NL:RVS:2012:BW1435).

Partner Visa Rejected because of Living Situation 

Another common application that is rejected by the IND, possibly for an incorrect reason, is a partner application for unmarried partners who are not living together at the same address. Given the housing crisis in the Netherlands, it can be difficult for some people to find housing where both they and their partner can register and afford. The IND has been lenient in the past in their decisions regarding unmarried partners who are not living together, as a consequence of the Council of State's ruling that rejecting such applications is contrary to the EU Family Reunification Directive ( article ). However, recently the IND have rejected all cases of this sort. The reason, according to the IND, that these applications can be rejected, is the case of Court of Justice of the European Union (hereinafter referred to as the Court) of December 12, 2019 (C-519/18, TB v. Bevándorlási és Menekültügyi Hivatal, hereinafter referred to as the TB judgment). As of the writing of this article, the IND reflects that the TB judgment allows member states of the European Union to impose additional conditions when using the optional provision in Article 10(2) of the Family Reunification Directive. This may not be correct for all cases. The TB judgment concerns the application for right of residence for a sister of an Iranian citizen who obtained refugee status in Hungary. The TB judgment does not have a more general scope and relates exclusively to family reunification of family members of refugees not mentioned in Article 4 of the Family Reunification Directive. The optional provision Article 10, second paragraph of the Family Reunification Directive does not cover family members of non-refugees such as an unmarried partner of a Dutch citizen or of a regular immigrant. In paragraphs 29 to 31 of the TB judgment, the Court expressly mentions that Article 4(2) and (3) of the Family Reunification Directive refer to situations other than those at issue in the TB judgment. Accordingly, the relevant assessment to make is whether or not the applicants have a genuine relationship, in line with the earlier Council of State judgment.

Conclusion 

These examples are not indicative of every IND rejection being unjustified, but it is possible for the IND to deliver decisions that are not in line with the law. In these cases having proper representation is crucial. Mynta Law has successfully argued many objections to visa rejections and depending on the situation, can help you. If the cases described are similar to your situation or if you have any questions you can contact us here .