The decision to abolish the discretionary competence of the State Secretary of Justice and Security will enter into effect on 1 May 2019. In its place, the Managing Director of the Immigration and Naturalisation Service (the IND) will be granted the competence during the initial asylum or regular residence permit application procedure in the Netherlands to officially assess whether a distressing situation exists.
On the basis of this assessment, the IND will have the option to issue a regular temporary residence permit. A policy framework has been prepared for the implementation of this assessment, the text of which was published today in the Staatscourant (Dutch Government Gazette). From 1 May 2019 it will be included in the Aliens Act Implementation Guidelines. This news article explains the policy framework.
Official assessment explained
Foreign nationals who apply for a regular residence permit or an asylum residence permit for the first time can indicate whether special and personal circumstances are involved which are present in the Netherlands. The IND will take this into account in its assessment of the application if the purpose of residence on the basis of which the application was submitted is not met. The policy framework explains how the IND assesses the circumstances indicated.
Foreign nationals can submit their special circumstances together with the regular application, or explain them during the interview on the merits of the asylum claim.. Foreign nationals must explicitly state why in their opinion the IND must apply the official competence. They must substantiate the special circumstances with documentary evidence. The IND does not use a list of circumstances when making the assessment. For each application the IND carefully considers whether there is a combination of special, personal circumstances. For example:
The assessment of a distressing situation can have a major impact on the personal situation of the applicant. The IND will therefore proceed carefully. At the same time, it is necessary to note that the IND can only make restrained use of its competence. The IND can only exercise its competence during the initial application procedure with the foreign national.
The official assessment can only result in a residence permit if the distressing circumstances indicated do not fall under an existing residence purpose.
If the IND decides that there is a distressing situation and a residence purpose is not met, the foreign national will receive a regular temporary residence permit.