Sometimes, an applicant is in such an awful situation that the person can be eligible for a residence permit because of that situation. In case of such a ‘harrowing situation’, the Managing Director of the IND can still choose to grant a residence permit although somebody is not entitled to one under the ‘normal’ rules. This only happens under certain circumstances and there are specific requirements. Important requirements are that it concerns a first application for a residence permit and particularly bad circumstances in the Netherlands.
At the IND, we assess all applications by people who want to stay in the Netherlands. In their application they give all kinds of information about the reason for the application and their circumstances. Sometimes, a harrowing situation in the home country emerges. This is considered in an asylum application, when we assess whether someone is eligible for an asylum residence permit because this person is not safe in their country of origin.
Sometimes the information can indicate a harrowing situation in the Netherlands itself. If someone is not eligible for a ‘regular’ permit, we check whether it concerns a situation for which there is already a policy in such a case. For a number of situations, there are specific policies that can make someone eligible for a humanitarian residence permit. This, for example, goes for victims of trafficking in human beings, people who are terminally ill or victims of honour-related violence. In case of harrowing circumstances for which there is no special policy, the Managing Director of the IND can eventually decide that this person will get a residence permit based on the harrowing situation.
The IND only assesses for a harrowing situation during the first application, which is a ‘first application’ for a decision and possibly an appeal. This is to discourage people from ‘stacking’ procedures after a first rejection, thus allowing them to remain in our country without a residence permit in the hope of eventually being granted a residence permit based on their harrowing situation. For example when somebody puts forward as a reason that they have built a whole life in the Netherlands. The IND does not carry out this assessment for applicants who are a threat to national security or have an entry ban. They are not eligible for a residence permit in any case.
What is considered harrowing cannot be described in great detail. In any event, it must concern a combination of different particularly unpleasant circumstances that occurred in the Netherlands. Or circumstances that have consequences which make the situation in the Netherlands harrowing. So, events in the country of origin or during the journey to the Netherlands do not count in this assessment for a harrowing situation. A residence permit based on a harrowing situation is intended for people who do not have a right to stay based on any other policy, but who should still get a permit based on humanitarian grounds.
A woman from Ethiopia is raped in Libya during her journey to the Netherlands. She gets pregnant because of this. In the Netherlands, she loses her child because she falls down an unsafe stairway. She also gets psychological problems because of the events in Libya. Because this is her first asylum application and it is rejected, the IND assesses for harrowing circumstances. The events in Libya are not considered in this assessment. However, the psychological problems are considered. So is the death of the unborn child. Because of the combination of these special individual circumstances, this woman may be eligible for a residence permit based on a harrowing situation.
The assessment for a harrowing situation has replaced the so-called ‘discretionary power’ of the Minister for Migration. Until May 2019, the Minister had this power. This meant that the Minister was able to decide whether a foreign national could get a residence permit because of a harrowing situation. A famous example where the discretionary power was used is the case of the Armenian children Lily and Howick. They absconded just before their planned removal to Armenia. Mark Harbers, Minister for Migration at the time, granted the children a residence permit based on his discretionary power because he was concerned about their safety. Now, the Managing Director of the IND decides whether there is a harrowing situation. Because the IND is an implementing organisation, the ministry is still politically responsible.
Another difference from the discretionary power is that it could also be used in case of second and subsequent applications, and the assessment for a harrowing situation only in case of first applications. After the discretionary power had come to an end, less permits were granted based on harrowing situations. This was also expected because harrowing circumstances in the Netherlands usually arise after a longer period of residence here.
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