Minister can still grant residence permits in exceptional cases, Council of State rules

Asylum Minister David van Weel may still grant residence permits in exceptional cases, the Council of State has ruled. This so-called discretionary power was transferred in 2019 from the minister to the director of the Immigration and Naturalisation Service (IND). However, because the change was made in lower-level regulations rather than in the Aliens Act itself, the minister retains this authority, according to the country’s highest administrative court.

The ruling came in a case involving an Iraqi man who applied for a residence permit on humanitarian grounds. The minister had refused to process the application, claiming he did not have the authority to do so.

The minister referred to the 2019 change in regulations, when the discretionary power was limited through a so-called general administrative order, which a minister can issue without approval from the Tweede Kamer, the lower house of Dutch parliament. The order transferred the power to the IND and limited it to the first asylum applications. He also pointed out that this Iraqi man’s case was not a first application.

The Council of State rejected both arguments. The discretionary power is still part of the Aliens Act, so the minister retains the option, the court said. It cannot be restricted through lower-level regulations.

Discretionary power often comes up in public debate, especially in high-profile humanitarian cases. Last year, it was discussed in the case of Mikael, a boy of Armenian background born in the Netherlands while his mother’s residence permit was being processed. Multiple attempts to secure a permit for him failed.

Opposition parties asked the then-asylum minister, Marjolein Faber, to use discretionary powers to let Mikael stay, but she said she did not have the authority, citing the same rules.