Temporary Residence Permit for Foreign Spouses of Dutch Nationals who Return to the Netherlands?

By Alexandra Nederveen

Summons to Return
In May of this year the Court of Appeals of Amsterdam ruled on a case regarding a Dominican woman who, after nine years abroad, came to the Netherlands with her Dutch husband and her three Dutch children. They were married abroad in 1993 and the Dutchman remained in the possession of a valid residence permit. When his employment contract abroad ended, the family decided to move to the Netherlands. Taking into account the condition on the employment market, the Dutchman expected to find work here on short notice, which he did. Upon arrival at Schiphol Airport, however, the Dominican woman was summoned to return to her country of origin immediately, as she had traveled into the Netherlands without a temporary residence permit with the aim to remain in the Netherlands permanently. An exception was made in the sense that she was given a 30-day visa to allow her to consult a lawyer.

In the Autumn issue of The XPat Journal, you could read that the application procedure for a temporary residence permit (or an MVV – Machtiging to Voorlopig Verblijf) can be a long one. Non-Dutch nationals for whom a temporary residence permit is required must apply for one in the country of their nationality or the country in which they are residing. This requirement entered into force in the Netherlands on December 11 1998 and was introduced for the purpose of checking and monitoring all types of immigration into the Netherlands. All non-Dutch nationals to whom this applies must therefore obtain permission to come to the Netherlands permanently in advance, which means that all conditions for residence in the Netherlands must be met before they are allowed to enter the country. The IND (Immigration and Naturalization Services) recently published a brochure on this subject, entitled Admission to the Netherlands, which can be obtained at all addresses where the Netherlands is represented abroad. You can read in this brochure that the Dutch spouse is to will report to the Aliens Police at his place of residence to provide proof of the fact that he and his foreign spouse meet all the requirements for residing in the Netherlands. Once this has been done, the documented request for a temporary residence permit is sent to the Visa Services of the IND, for them to decide on. This implies that the Dutch spouse will have to travel ahead of his family – and thus be separated from wife and, oftentimes, children. When setting up this procedure for acquiring a temporary residence permit, the Dutch legislative bodies based the procedure on the standard situation in which the Dutch partner or husband is living and working in the Netherlands and the foreign partner or spouse is living abroad. It is clear – also from the parliamentary discussion of this regulation – that the Dutch legislative bodies did not take into account the situation of the Dutch expat who lives abroad with his family and wishes to return to the Netherlands. The Court of Appeals asked the IND if they didn’t feel, in cases such as this one, that this might lead to an unreasonable application of the law. The IND was of the opinion that it did not, as it only led to a temporary separation, in which the interest of the Dutch government to be able to exercise due monitoring took precedence over that of the individual family.

The legal term within which a decision must be reached regarding the issuing of a temporary residence permit is three months. However, in actuality, it has become six to nine months – for the simple temporary residence permit requests in which all required documents have been submitted. When problems arise – such as regarding the legalization (and sometimes verification) of birth and marriage certificates, then this process may take much longer. This can no longer be considered a temporary separation. The European Treaty for the Protection of Human Rights strictly protects the rights of the family in article 8. This Treaty supersedes national legislation and has immediate effect. In this case, the Court of Appeals therefore asked the IND a number of questions of principle regarding the case of the Dominican wife. One of these was how the IND feels about separating spouses (and, as the case may be, children) who were living abroad legally and were returning to the Netherlands for such a long time – in relation to article 8 of the Treaty. In a written reaction, the IND has already answered that if the Dutch spouse, before returning to the Netherlands, can prove that he will be employed in the Netherlands for an extended period of time – that is to say, at least for a period of one year – that he will not have to travel to the Netherlands in advance. This would allow the foreign spouse to submit a request for a temporary residence permit with the Dutch representative authorities abroad and await the outcome, with the entire family, abroad. Once the temporary residence permit has been issued, they can then travel to the Netherlands together. Though this means that, on this matter, the brochure issued by the IND is no longer up-to-date, it is not likely that the Dutch diplomatic services are aware of this. In any case, it is a step forward for the families of Dutch expats who already know that they will be able to continue working once they are in the Netherlands; they will not have to await the outcome of the temporary residence permit-procedure separately.

The Court of Appeals of Amsterdam has not yet ruled on this case, which means that the Dominican wife does not yet know what will be decided regarding her stay in the Netherlands without a temporary residence permit. One of the problems is that her husband did not yet know that he would have long-term employment once he got to the Netherlands. The Court of Appeals is expected to rule on this matter shortly.

Alexandra Nederveen works for Hamerslag & Van Haren Lawyers in Amsterdam, tel.: 020 - 535 31 80

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