On 23 April 2023, the Dutch newspaper NRC reported that the Minister of Foreign Affairs (hereinafter: the Minister) has disregarded recommendations to stop using profiling software for the assessment of Schengen visa applications. By distinguishing applicants on the basis of their nationality, origin, age and gender, the software may have a discriminatory effect, according to the advice. Partly based on these characteristics, a score is calculated to determine the risk that the applicant will not return to the country of origin in time. This risk is referred to in Dutch as the 'vestigingsgevaar', for the purpose of this article translated to 'risk of residence'. We regularly see that visa applications are rejected on this basis.
Take Ahmed for example. He is 64 years old, lives in Morocco and has the Moroccan nationality. His daughter Nera lives in the Netherlands and will soon give birth to her first child. Ahmed would like to support his daughter during the period of the birth and meet his grandchild. Ahmed therefore applies for a short-stay Schengen visa in Rabat.
Rejected
Two weeks later, Ahmed receives a written rejection of his application. It states that there are "reasonable doubts about the intention to leave the territory of the member states before the expiry of the visa." The decision further contains several standard considerations that include the statement that significant social and/or economic ties with the country of origin have not been sufficiently demonstrated.
The decision does not respond to Ahmed's personal situation. Therefore, it does not become clear to him what specific circumstances are causing the minister to not believe that he will return in time. Together with a lawyer, he files a notice of objection to challenge the rejection.
After a quite some time, the lawyer receives Ahmed's file from the embassy in Rabat. In the file, the lawyer reads as part of the reasons for the rejection that Ahmed is a "retired widower, has no relatives that depend on him and has no serious social obligations that require him to return in a timely manner."
Although he is indeed retired and widowed, Ahmed has lived in Morocco all his life, and there are family members and friends in Morocco with whom he has a close relationship. Ahmed had attached proof of his pension benefits to his visa application. The pension benefits are sufficient to live on in Morocco. Although living conditions in Morocco are not the same as in Europe, Ahmed has no interest in trading his life in Morocco for an illegal or insecure existence in the Netherlands. He wonders what else he can do to convince the minister that he will return in a timely manner.
Economic and social ties
For the objection, the lawyer advises Ahmed to submit further documents to the minister to substantiate his economic and social ties to Morocco. The stronger these ties are, the sooner the minister will be convinced that Ahmed will return to Morocco in time after visiting his daughter in the Netherlands. The assessment of social and economic ties to the country of origin is based mainly on the stability of income, the financial situation and family ties of the applicant.
In general, economic ties can be demonstrated by, for example, recent bank statements, an employment contract or employer's statement, proof of pension benefits and a property deed of real estate. Social ties can be substantiated with, among other things, excerpts from the civil registry, proof of enrollment at a school or university, joint bank accounts or leases, marriage and birth certificates, third-party statements and photographs.
Ahmed tries to gather as much additional evidence as possible. In the objection letter, the lawyer reminds the minister that, according to case law, the social and economic ties to the country of origin should be viewed as 'communicating vessels'. This means that weaker economic ties can be compensated by a strong social ties, and vice versa. In addition, the minister should consider the circumstance that some documents that are very common in the Netherlands may not be easily obtained in other countries.
In its assessment, the minister has a wide margin of discretion. This means that there is less room for a judge to come to a different assessment, as long as certain legal principles are observed by the minister. For example, the minister is obliged to give sufficient reasons for a decision, to carefully examine the individual circumstances of the person concerned and to consider whether the rejection has disproportionate consequences when personal interests are taken into account.
Purpose and circumstances
When there is reasonable doubt about the intention of the visa applicant to return in time, the minister assumes a risk that the applicant will migrate to the Netherlands with a purpose other than 'short stay'. For this reason, the decision often also states as reason for the rejection that "the purpose and circumstances of the intended stay have not been sufficiently demonstrated". When a risk of residence is assumed, the minister draws the conclusion that the purpose stated in the application (in Ahmed's case: family visit) is a cover for the 'real' purpose: permanent residence in the Netherlands.
Facilitating visa
Unlike a short-stay visa, the risk of residence cannot play a role in the assessment of an application for a 'facilitating visa'. This visa can be applied for by a family member of an EU/EEA citizen or by the actual caretaker or minor sibling of a Dutch minor child (Chavez-Vilchez). In this case, there is no need to demonstrate sufficient social and economic ties with the country of origin. After all, the purpose of a facilitating visa is precisely to settle in the Netherlands with the Dutch child or EU/EEA family member. The minister is obliged under EU law to facilitate the applicant by issuing a visa so that the derived right of residence under EU law can be realized.
In Ahmed's case, this is not applicable. He has no plans to settle in the Netherlands. He only wants to visit his daughter so he can support her during the last phase of her pregnancy and get to know his as yet unborn grandchild. A positive decision on the objection will enable him to do so, hopefully in time before his daughter has given birth.
Discriminatory algorithms
Cases like Ahmed's are presented regularly in our practice. We notice that especially single pensioners or young people without dependent families, coming from non-Western, less prosperous countries, face the suspicion of the risk of residence. That suspicion is not always justified and as follows from NRC's news report, may be based on discriminatory algorithms. A lawyer can help you prepare a strong visa application or challenge the decision when the application was rejected.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.