Residence permits for polyamorous relationships
Do you want to live in the Netherlands with your non-European spouse or unmarried partner? Then this spouse or partner needs a residence permit. There are a number of conditions that the Immigration and Naturalisation Service (IND) checks against. Until recently, unmarried persons had to be in a 'lasting and exclusive relationship' in order to be eligible for a residence permit for a partner. This means that the unmarried relationship in question should be comparable to a marriage.
However, the Administrative Jurisdiction Department of the Council of State recently delivered a ruling stating that having multiple relationships does not preclude the granting of a residence permit as long as a residence permit is requested for only one partner. This article aims to describe how a residence permit for someone in a polyamourous relationship can be obtained.
Facts in the case before the Council of State
Years ago, a Moroccan man obtained a residence permit to stay in the Netherlands with his Dutch partner (unmarried). Years later, it turned out that the man in question, after obtaining his residence permit in the Netherlands, got married again to his ex-wife in Morocco. His residence permit was withdrawn with retroactive effect because he would no longer have a lasting and exclusive relationship with his partner in the Netherlands. The requirement of a lasting and exclusive relationship is laid down in Article 3.14 of the ‘Aliens Decree’ (‘Vreemdelingenbesluit’).
On appeal, the man argued that Article 3.16 of the Aliens Decree states that only one spouse or one partner at the same time can be granted a residence permit to stay with a family member if the foreign national has entered into a marriage or relationship with more than one other person at the same time.
The man argued that, as a foreign national, he is the only partner who applies for a residence permit and that having multiple relationships does not stand in the way of this. The requirement of having a lasting and exclusive relationship does not change this. The Administrative Jurisdiction Division agrees with the man but does not reject the former exclusivity requirement, nor does it explain why article 3.16 of the Aliens Decree is weighed heavier than article 3.14 of the Aliens Decree.
Change residence permit with partner to another partner without a residence gap
In practice, it often happens that a relationship is ended and that someone subsequently wants to obtain a residence permit on the basis of a relationship with a new partner. Registering a new relationship immediately after deregistering an old relationship can cause the IND to be suspicious and unwilling to grant the new residence permit. Moreover, registering a new relation immediately after deregistering an old relation almost certainly results in a residence gap for the applicant.
Because the termination of a relationship and the emergence of a new love relationship is often a fluid process, Mynta Law can provide advice on coordinating the cancellation of an old relationship and applying for a residence permit for a new relationship. In this way a residence gap and/or a withdrawal of a residence permit can be prevented.
Do you have questions about switching from a residence permit with one partner to another partner? Please feel free to contact us. You can ask your questions via the contact form, or you can contact Charley Nieuwesteeg directly.
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