Brexit permanent residence despite deregistration from the BRP system

Are you a British citizen who came to the Netherlands before the end of the transition period (ie. before 1 January 2021)? If so, your Brexit permit may expire this year. Thus, it may be sensible to up the ante in applying for a Brexit permanent residence permit. A Brexit permanent residence permit is valid for 10 years. When holding a Brexit permanent residence permit, one is allowed to stay up to five years outside the host State.  

When it comes to an application for Brexit permanent residence permit, the Dutch Immigration Department ("the IND") will, for example, scrutinize the issue as to whether one has been continuously registered within the Dutch population system ("the BRP") for five years. If an applicant had been deregistered from the BRP system for an extensive period, the IND may ask them to provide further justification and evidence. Article 16(3) of the EU Directive 2004/38 stipulates that continuity of residence shall not be affected by absences of a longer duration for a myriad of important reasons (eg. military service, study or vocational training, or serious illness etc.). By analogy, this provision is applicable to qualifying British citizens under the Withdrawal Agreement.

Recently, we have successfully helped a client obtain their 10-year Brexit permanent resident permit, notwithstanding the fact that this client was deregistered from the BRP for an extensive period. This client provided the IND with evidence showing that they left the Netherlands because of an important reason.

Meanwhile, we helped the client invoke a number of legal arguments. For example, very recently, the UK Home Office updated their own policy with regard to pre-settled status. Under this new UK Home Office policy, a pre-settled status holder can obtain settled status more easily.  As stated in article 38(1) of the Withdrawal Agreement, “[the Withdrawal Agreement] shall not affect any laws, regulations or administrative provisions applicable in a host State or a State of work which would be more favourable to the persons concerned.”  Also, in some other types of cases, we have successfully invoked the UK Home Office policy, in relation to the Dutch Immigration Department (“the IND”), as the Withdrawal Agreement is a primary source of EU law, which requires a uniform interpretation. As the incumbent President of the Court of Justice of the European Union, Professor Lenaerts says in his article No Member State is More Equal than Others: “three direct implications flow from the principle of 'equality of the Member States before the Treaties'. First, the uniform interpretation and application of EU law are key for guaranteeing that equality. Second, the uniform interpretation of EU law needs to be ensured by one court and one court only, i.e. the Court of Justice. Third and last, the principle of primacy underpins the uniform interpretation and application of EU law.”

Never asked for a Brexit permit? But you still want to ask for a Brexit permanent residence permit.

If you are a British citizen and have never asked for a Brexit permit, you might still qualify for a Brexit permanent residence permit, especially if you came to the Netherlands before the end of the transition period and you have been in possession of another type of visa (such as, study or a family member visa).

Should you have any questions about the Brexit permanent residence permit, please feel free to book a consultation with one of our lawyers.