By decision of 27 August 2019, the State Secretary for Justice and Security rejected applications from the foreign nationals, a family from Vietnam (mother, father and three minor children) for a residence permit as part of the so-called Final Regulation for long-term resident children (Afsluitingsregeling). In the present case the mother has not been able to prove her real identity and as a result the entire family was rejected.
On 19 November 2020, the District Court of the Hague rejected appeals against this decision. The Council of State decided on further appeals lodged by the family and clarified how the State Secretary should assess so-called children's amnesty cases on proportionality and how the administrative court should subsequently review such assessments.
The Council of State annulled the decision of the State Secretary and ruled that not granting a residence permit in these specific cases would have disproportionate consequences for the children.
The Council of State noted that for the State Secretary, the regulation of January 2019 was the intended final piece of regulations for children who stayed in the Netherlands for a long time and it granted a residence permit to all family members if the child was granted a residence permit. However, if a so-called contraindication applied to one of the family members, none of the family members would receive a residence permit.
The Council also noted that the Final Regulation was intended for children who had no prospect of a residence permit, but who had been staying in the Netherlands for a long time. In such cases, the State Secretary would decide whether the policy should be followed or whether it should be deviated from in an individual case, based on the arguments presented by the foreign national as to why they should still be granted a residence permit, despite the behaviour of the family members. The Council noted that the State Secretary would have to consider in each individual case whether the decision to refuse a residence permit was disproportionate for the children, substantiate whether the decision was suitable, necessary and balanced. In addition, the administrative court must then review the decision of the State Secretary on the basis of suitability, necessity and balance. It was further noted that the review provided by the court should be more intrusive if the behaviour of a family member is held against the child.
Lastly, the Council noted also that this assessment standard is in line with the proportionality assessment elaborated in its ruling of 2 February 2022, ECLI:NL:RVS:2022:285.