How can elderly parents immigrate to the Netherlands (or the European Union)?
Recently, there has been an increasing interest in the issue of parental migration. How can elderly parents immigrate to the Netherlands (or the EU)?
A long time ago, the Netherlands had a special immigration policy for elderly parents who were alone in their country of origin. On average, each year, approximately 80 elderly parents could immigrate to the Netherlands on the basis of the elderly parent policy. Nevertheless, after the general election in 2010, two center-right ruling parties needed the political support from an anti-immigration party to form a minority government. Under the pressure of the anti-immigration party, the Netherlands Government decided to abolish the immigration policy for elderly parents. As a consequence, it became much more difficult for non-EU parents to immigrate to the Netherlands.
However, there are still a couple of options (such as, parental migration under the EU Directive 2004/38). In this article, we shall discuss the possibility under the EU Directive 2004/38.
Freedom of movement
In accordance with the EU Directive 2004/38, an EU citizen has the rights to reside in another Member State. For example, a German citizen can live and work in the Netherlands. More importantly, when an EU citizen moves to another Member State and actively exercises his/her rights to ‘freedom of movement’, his/her (non) EU family members can enjoy the same rights to ‘freedom of movement’ as referred to in the EU laws. Nevertheless, if an EU citizen has never exercised his/her rights to ‘freedom of movement’, his/her (non) EU family members cannot exercise their rights either. For instance, the non-EU parents of a Dutch citizen (who has never lived in another EU Member State) cannot live in the Netherlands with their Dutch son/daughter under the scope of the EU Directive 2004/38. When the same Dutch citizen moves to another EU Member State (such as, France), his/her non-EU parents may be able to live together with him/her in that EU Member State.
Definition of family member
Article 2, paragraph 2, of the EU Directive 2004/38 specifies who are the family members of an EU citizen. In general, spouses, children younger than 21, (grand) parents and children of the age of 21 or above are family members of an EU citizen. Standing in contrast to spouses and children below the age of 21, parents, grandparents and children of the age of 21 or above need to be financially dependent on the EU citizen, before they can be perceived as family members of an EU citizen. In other words, a non-EU elderly parent will need to demonstrate that he/she is financially dependent on an EU citizen before the non-EU parent can immigrate to the EU.
In the case of Yunying Jia v Migrationsverket, the European Court of Justice holds that financial dependency means that “members of the family of [an EU] national established in another Member State […] need the material support of that [EU] national or his or her spouse in order to meet their essential needs in the State of origin of those family members […] at the time when they apply to join that [EU] national”. Furthermore, the European Court of Justice stipulates that “proof of the need for material support may be adduced by any appropriate means, while a mere undertaking from the [EU] national or his or her spouse to support the family members concerned need not be regarded as establishing the existence of the family members’ situation of real dependence”.
To clarify, the opinion of the European Court of Justice can be summarised as follows: (1) The financial dependency has already existed in the country of origin (eg. India), before an elderly parent comes to the EU; (2) An EU son/daughter has given material support to the elderly parent; (3) The elderly parent needs the material support from his/her EU son/daughter to (4) meet the basic needs in the country of origin.
With respect to this ECJ judgement, the Member States may have slightly different interpretations. For example, how long should a non-EU parent be financially dependent on his/her EU child prior to coming to the EU?
In April 2016, the Dutch Council of State ruled that: “from the fact that the referent has often been wiring a sum of money to the foreigner over a period of time, it does not follow that the offered support is actually needed to meet the basic needs of the foreigner.”
Return from Host Member State to Home State of EU Citizenship
If a non-EU family member has been living together with his/her Dutch family member in Spain, will the non-EU family member be able to move to the Netherlands? With regard to this issue, in the case of O., B., S. and G. v Minister voor Immigratie, Integratie en Asiel, the European Court of Justice has made clear that “where a Union citizen has created or strengthened a family life with a third-country national during genuine residence, pursuant to and in conformity with the conditions set out in […] Directive 2004/38, in a Member State other than that of which he is a national, the provisions of that directive apply by analogy where that Union citizen returns, with the family member in question, to his Member State of origin. Therefore, the conditions for granting a derived right of residence to a third-country national who is a family member of that Union citizen, in the latter’s Member State of origin, should not, in principle, be more strict than those provided for by that directive for the grant of a derived right of residence to a third-country national who is a family member of a Union citizen who has exercised his right of freedom of movement by becoming established in aCour Member State other than the Member State of which he is a national”.
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