Partner visa holders: please be aware of a new IND practice

Over the last couple of years, the Dutch Council of State (“Raad van State”) has given several progressive judgments. For example, by ruling of 10 December 2019, the Council holds that a partner visa holder/applicant does not need to live together with his/her sponsoring partner. In a November 2021 judgment, the Council rules that partners do not need to be in an exclusive relationship. In another judgment given in June 2019, the Council holds that the main residence requirement (“hoofdverblijf”) does not apply to a partner visa holder. Because of all these judgments, the IND has been kept on tenterhooks. Instead of coming to terms with these judgments, the IND has been looking for arguments to offset these Council of State rulings. Recently, the IND has found an argument, which the IND has been using to refuse and/or to revoke partner visas, especially when the partners are neither married nor registered. Has the IND found a magic wand or is the IND trying to flog a dead horse?

The case of TB v. Bevándorlási és Menekültügyi Hivatal

The argument that the IND invokes comes from the case of TB v. Bevándorlási és Menekültügyi Hivatal, given by the European Court of Justice on 12 December 2019 (ECLI:EU:C:2019:1070). In this case, an Iranian national who had obtained the status of refugee in Hungary helped his sister apply for family reunification. Pursuant to paragraph 19(4)(b) of the Hungarian Law No. II of 2007, the siblings of a person who has been granted refugee status can obtain a residence permit for family reunification, where they are objectively unable to provide for their own needs on account of their state of health. The referring Hungarian court was uncertain whether paragraph 19(4)(b) of the Hungarian law was compatible with article 10(2) of the EU Directive 2003/86. Article 10(2) falls under Chapter V Family reunification of refugees, and article 10(2) itself says that “the Member States may authorise family reunification of other family members not referred to in article 4, if they are dependent on the refugee.” Apparently, article 10(2) does not relate to family members of non-refugees (such as, an unmarried partner of a Dutch citizen or of a regular immigrant). It is worth mentioning that, in paragraphs 29 to 31 of the judgment, the European Court of Justice explicitly points out that:  

29      In addition, it must be found that, by its second and third questions, the referring court seeks clarification from the Court as to how Article 4(2) and (3) of Directive 2003/86 should be interpreted.

30      However, those provisions are directed at situations different from that at issue in the main proceedings, since they concern the family reunification of members of the refugee’s family other than his sister.

31      The mere fact that, in the context of the implementation of Article 10(2) of Directive 2003/86, the Hungarian legislature used analogous language to that referred to in Article 4(2) and (3) of that directive is not sufficient to justify a request for interpretation of those provisions.

The family reunification rights of an unmarried/unregistered partner are enshrined in article 4(3) of the Directive. It is evident that the ECJ has never given an interpretation of this provision in the TB v. Bevándorlási és Menekültügyi Hivatal, while the Dutch Council of State has given a number of lenient judgments.

Recent practice of the IND

Nevertheless, over the last several months, through using TB v. Bevándorlási és Menekültügyi Hivatal as an argument, the IND has started to refuse some partner visa applications and to revoke certain partner permits, for example, when the partners are not living together or when the foreign partner has been staying outside the Netherlands for an extensive period of time.

For example, in a recent revocation decision, the IND wrote: “It is deduced from the judgment of the Court of Justice of the EU (CJEU) of 12 December 2019 that the EU member states may impose additional conditions if an optional provision in the family reunification directive is used. The Netherlands has made use of this optional provision to allow unmarried partners to stay under certain conditions (article 4, paragraph 3, Family Reunification Directive). The cohabitation requirement and the requirement that there must be no move of the main residence from the Netherlands are additional conditions that are permitted according to the CJEU. I am therefore withdrawing your residence permit with retroactive effect […]”

Practical advice

If you hold a partner visa as an unmarried partner, please be aware of the latest practice of the IND. Also, it may be sensible to be cognizant of the IND requirements about joint co-habitation and main residence etc. Should you have any further questions, please feel free to contact Mynta Law.