The highest Dutch administrative court has overturned two rulings by former junior justice minister Ankie Broekers-Knol in which she refused to give residency permits to children.

The minister took the decision on the basis of special legislation aimed at helping children who are considered to be well-rooted in the Netherlands, despite being undocumented.

The ruling states if a child is given a residency permit in their own right, their immediate family can remain with them under EU human rights law. Conversely if one person in the family is rejected, no-one is given the right to stay in the Netherlands.

In June 2019, Broekers-Knol decided not to give a residency permit to a Vietnamese family with three children because the father had convictions for growing marijuana, holding a false travel document and shoplifting.

This, the minister said, meant he was a threat to public order and she therefore rejected the family’s applications to stay.

The Council of State has now ruled that this is not a valid argument to reject the children’s applications.

Identity

In the second case, the minister denied a residency permit to a Kenyan boy and his mother, who had been in the Netherlands since 2001, on the grounds the woman could not prove her identity. Here too the court ruled this was not a valid reason to deny a permit.

‘In both rulings… the court ruled that not granting a residence permit would have disproportionate consequences for the children,’ the Council of State said.

‘The junior minister must reconsider whether he should grant the foreign nationals a residence permit. He may not take the position that in one case the mother has not been able to prove her identity and in the other case the father poses a threat to public order.’

Distressing

Last year, a report published by the Centre for Migration Law at Radboud Universiteit in Nijmegen said the treatment of migrants who fall foul of the strict and complex rules allowing them to stay in the Netherlands has echoes of the child benefits scandal.

Immigration officials and judges are too quick to assume fraud by immigrants and asylum seekers, while the rules give them little scope to consider the human impact of their decisions, the report said.

Up to 2019, the justice minister had the right to grant residency to people in a ‘distressing’ situation by using their powers of discretion. But that power was taken away in 2019 and given to the IND when the amnesty for well-rooted child refugees changed.

In 2019 ‘fewer than five’ people were given a residency permit by the IND because they fell into the ‘distressing cases’ category, and in 2020 around 10. Prior to that, ministers used their discretion around 100 times a year.