Amazingly good news

[Kim P. Nyberg]

I have just last night seen a decision by the Immigration Appeals Board in a case where a foreign national applied for an AO1 in Denmark despite having a valid residence permit in Austria. You probably remember the case from East Jutland back in February, which was all over the media.

Quote:

‘The Immigration Appeals Board considers that [foreigners] valid residence permit in Austria should not be the sole determining factor in the case.’

End of quote.

And that was precisely the only thing on which the Immigration Service had based its original refusal.

The decision from the Board further states:

Quote:

‘It is therefore the opinion of the Immigration Appeals Board that an overall assessment must be made of the consequences for the Union citizen of refusing a residence permit to a third-country national who has the right of residence in another Member State.

This assessment must include consideration of the best interests of the child and the ties of the Union citizen and the third-country national to the Member State of residence as opposed to any ties to the other Member State where the third-country national has the right of residence.

The Immigration Appeals Board therefore finds that the core content of the rights conferred on [the child] by his status as a Union citizen must be interpreted in the light of the considerations set out in the UN Convention on the Rights of the Child, including Article 3(1) on the best interests of the child and Article 9(1) on the right not to be separated from his or her parents.

On the basis of an overall assessment of the specific circumstances of the case, the Immigration Appeals Board finds that it would be contrary to [the child's] best interests if [the foreign national] were refused a residence permit in Denmark on the grounds that [the child] can reside legally in Austria, where [the foreign national] has a valid residence permit.

The Immigration Appeals Board has attached decisive importance to [...] hospital's statement regarding [the foreign national's] illness and treatment, which states that [the foreign national] has [diagnosis], that he was born with a mucus plug, which required emergency surgery and subsequent stoma, that his health is such that he requires extensive treatment, that he has to attend hospital for check-ups every six weeks , that he has been in hospital 11 times during 2023, and that his prognosis, if he continues to be treated according to the plan laid down by the hospital, is that he will need a lung transplant at the age of approximately 35.

The Immigration Appeals Board has also taken into account that it can be assumed that [the foreign national] has never resided in Austria or has any connection there.

The Immigration Appeals Board also considers that there is sufficient doubt as to the validity of [the foreign national's] temporary residence permit, given his residence in Denmark.

The Immigration Appeals Board has taken into account that it appears from [the foreign national's] residence card that it is valid until 3 September 2026, that he has a student card from the University of Veterinary Medicine, Vienna, that it appears from the Austrian immigration authorities' website on residence permits for third-country nationals that a temporary residence permit expires if the person concerned no longer resides in Austria, and that [the foreign national] has resided in Denmark since 24 August 2024, which was the date on which his [child] was born.

The Immigration Appeals Board therefore finds, on the basis of an overall and specific assessment, that it would be contrary to the best interests of the child under Article 3(1) and Article 9(1) of the UN Convention on the Rights of the Child 9(1) of the UN Convention on the Rights of the Child to refer [the child] to reside in Austria with his father, as the father's temporary basis for residence will potentially result in another move outside the territory of the Union, and that the uncertainty will not be in accordance with the extensive treatment that [the foreign national] is currently receiving for a serious illness.’

End of quote.

The Board has referred the case back to the Immigration Service for reconsideration.

As mentioned, the only thing the Immigration Service based its original refusal on was that the person had a residence permit in another EU/EEA country. They have thus disregarded all other circumstances in the case. The Immigration Appeals Board has now ruled that the Immigration Service is not allowed to do so. They MUST consider the case as a whole and make a decision on that basis.

If you have been refused a residence permit SOLELY on the basis of a residence permit in another EU/EEA country, it may be worth considering submitting a new application to the Immigration Service.