If the IND wants to revoke a residence permit or Dutch citizenship, the IND must hear the person involved. However, it regularly happens that the IND takes a decision without hearing the person involved.
The rule is that the IND must always provide the person involved the opportunity to explain one’s point of view. If the IND wants to revoke a permit or Dutch citizenship, the IND must hear the person involved, both before the IND decides about the revocation and also, if it is revoked, before the IND decides on the objection. This is regulated in the General Administrative Law Act (‘Algemene wet bestuursrecht (Awb)’). The exception to this rule is when it is very clear (‘undoubtedly’) which decision must be taken and the objection cannot lead to a different decision.
The IND often states that there is no obligation to hear, because there is no doubt about the decision and the objections cannot lead to a different opinion. In the past, this was regularly approved by the court. However, there are more and more examples of court’s decisions, also decisions by the highest court, the Council of State (‘Raad van State’), in which the IND cannot get away with this and decisions are annulled because of violation of the obligation to hear.
In the practice of Scheers Advocatuur, it happens regularly that negative decisions for clients are quashed, also on the basis of violation of the obligation to hear. Examples of decisions by the Council of State are a decision of 17 November 2021 on the withdrawal of Dutch nationality, because this client had not renounced his original nationality. The IND’s decision was quashed, because the IND should have heard this client about the consequences of the withdrawal of his nationality and should have assessed whether this withdrawal is proportionate. Another example is a decision of 17 September 2021, not about a withdrawal but about a rejection of an application to stay with a Dutch child. The Council of State ruled here that the IND had wrongly not included statements from friends and acquaintances and that the client should have been heard about the care and upbringing tasks. The Council of State also ruled in a recent decision of 13 January 2022 that the IND should have heard client about the termination of the relationship before the withdrawal of the partner residence permit.
For more information on this subject and/or to schedule an advise meeting, please contact Scheers Advocatuur.