The Council of State ruled in this judgment on appeal that the revocation of the residence permit by the IND is disproportionate.

The IND had revocated the residence permit to stay with the partner, because the foreign national’s partner was in detention at the time the residence permit was granted. In an earlier decision, the Council of State had already annulled the withdrawal of the residence permit by the IND, because clients had not reported that they did not (immediately) start living together at that time. However, the IND continued to insist on withdrawing the residence permit even after that ruling. According to the IND, because of that detention, there was no real family life at the time the residence permit was granted. Moreover, according to the IND, the partner’s income must have changed at that time and this was wrongly not reported when the residence permit was granted.

After the court had already given short shrift to these new grounds for withdrawal, the IND considered it important to appeal against that decision. The Council of State now confirms this decision on appeal, almost 4 years after the withdrawal of the residence permit, which means that the withdrawal is completely off the table.

In this case the Council of State ruled that it is important that the IND had already established that these unmarried partners have a lasting and exclusive relationship, that the factual situation has thus been assessed and that it can then no longer be argued that there was no real family life. With regard to the changed income, the Council of State considers that although this should have been reported, the withdrawal of the residence permit on the basis thereof is disproportionate in this case. The IND had not made a proper assessment of interests. The client and her daughter were not aware of this, the partner’s business activities were continued by the business partner during his detention, no appeal was made to public funds and they actually and immediately started living together after the detention.

This ruling shows that the Council of State, as the highest court, also takes the assessment of proportionality seriously in immigration cases. Furthermore, the preceding procedures show that the IND is sometimes very obstinate in trying to get it right after all and (continue to) litigate for that purpose. Certainly in this case it can be questioned what the IND’s interest is in sticking to the withdrawal of the residence permit, even if it has been clear for more than 5 years that there is a real relationship and no claim has been made for social assistance. It is up to the IND to take steps in other cases as well in order to properly weigh up interests and assess proportionality.