In a judgment on appeal of June 19, 2023, the Council of State ruled that the IND is not authorized to investigate a marriage of convenience by means of a simultaneous hearing. The use of information from that hearing is inadmissible and unlawful and may not be included in the assessment. In a court’s judgment of August 1, 2023, the court ruled that this applies to both national family reunification cases (pursuant to the EU Family Reunification Directive 2003/86) and to EU family reunification cases (pursuant to the EU Residence Directive 2004/38).

The IND has now, in a message of October , 18, 2023, determined  that simultaneous hearings will no longer be held. This applies until the necessary changes to the regulations have been implemented. Information obtained during a previous hearing should be classified as unlawful evidence. This means that the decision to reject or revoke a residence permit may not be based on the results of this hearing.

However, the IND makes a strange distinction between hearings before and after June 19, 2023 (date of the Council of State judgment). According to the IND, the hearings before this date may be used if there were reasons that justified the hearing. The IND gives as a reason for this difference, that it only became clear on that date that investigation into marriages of convenience has not yet been implemented in the regulations. However, according to Scheers Advocatuur, there should not be a difference between hearings before and after that date, as it was not implemented before that date either and the IND therefore did not have the authority to hold that hearing before that date either.

If, based on an interview, the IND has assumed that there was a marriage or relationship of convenience and this has led to the rejection or withdrawal of the residence permit, it may be useful to have this reassessed. According to Scheers Advocatuur, this applies to hearings conducted before and after June 19, 2023. It may be that the rejection or withdrawal of the residence permit is unlawful and must be revoked. Scheers Advocatuur is happy to assess whether this also applies to your case.

For more information, please contact Scheers Advocatuur.