IND is not allowed to conduct further investigation into sham marriages on the basis of the General Administrative Law Act

On 19 June 2023, the High Administrative Council of State (hereinafter: ABRS) ruled in a case concerning the rejection of an application for an MVV (provisional residence permit) to stay with spouse based on  an interview by the IND of the sponsor and the foreign national (court ruling only available in Dutch).

Background

The foreign national, originating from Ghana, wanted to stay in the Netherlands with his Dutch wife. They were married in Ghana in 2018. In reviewing the application, the couple were invited to a simultaneous interview, during which they were asked questions about their marriage. Based on this interview, the State Secretary (IND) concluded that this was a sham marriage and therefore rejected the application.

The foreign national and his wife did not agree with the rejection and appealed to the court. The court concluded that the State Secretary (IND) was allowed to base the investigation into a sham marriage on the principle of due care as included in Article 3:2 of the General Administrative Law Act (hereinafter: Awb).

The appeal at the High Administrative Council of State

The foreign national complains that the specific provision of the Family Reunification Directive 2003/86/EG that makes it possible to conduct further investigation into a marriage has not been correctly implemented into Dutch Foreigners Decree (Vreemdelingenbesluit). The ABRS agrees with this point of view and rules that the Awb does not contain any legal basis that makes it possible to conduct a further investigation into fraud or sham marriages by means of a simultaneous hearing.

The information obtained in this case from the simultaneous interview was therefore obtained in an unlawful manner. It appears from established case law that illegally obtained evidence may only be excluded if the way in which the evidence was obtained deviates to such an extent from what may be expected of a properly acting government that the use of this evidence must be considered impermissible (see for example this court case: ECLI:NL:RVS:2022:3231). The ABRS rules that there is such a deviation in this case, partly because a simultaneous hearing is regarded as an incriminating power that infringes on the private life of the parties involved.

What does this ruling mean?

This ruling makes it clear that the State Secretary (IND) may not simply conduct further investigations into fraud or sham marriages by means of a simultaneous interrogation, because there is currently no legal basis for this in Dutch migration legislation.

However, this may change in the near future. On 19 January 2023, a prepublication of an Order in Council was published in the Government Gazette, proposing to include a provision in the Aliens Decree 2000 to implement the power to further investigate fraud and sham marriages. You can read the publication here (only available in Dutch).

Need help?

Do you have any questions about the family reunification procedure or have you received an invitation for a simultaneous hearing? Please contact us for more information via our website.