Residence under Brexit Withdrawal Agreement applications still possible despite IND’s expired 'deadline'

 Since the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union, British citizens who were residing in the Netherlands before January 1, 2021 derive lawful residence from the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (hereinafter referred to as: the Withdrawal Agreement).

(Family members of) UK nationals who were residing in the Netherlands before January 1, 2021 could submit an application under the Withdrawal Agreement in a timely manner until September 30, 2021. Applications based on the Withdrawal Agreement that had been submitted in the period from October 1, 2021 to September 30, 2022 were still processed by the IND in terms of content regardless of the reason for the late submission.

In accordance with the provisions of Chapter B13 of the Aliens Circular (‘Vreemdelingencirculaire’), applications on the basis of the Withdrawal Agreement submitted on or after October 1, 2022 will only be substantively considered if it has been demonstrated that there is an excusable reason for the late submission.

However, applications based on the Withdrawal Agreement can still be submitted despite the deadline imposed by the IND. This is because the deadline set by the IND in the Aliens Circular does not apply to an application based on the Withdrawal Agreement.

Travel and residence rights for (family members of) Union citizens and UK citizens

The right of travel and residence to which Union citizens are entitled by virtue of this capacity can be found in the second paragraph, subparagraph a, of Article 20 of the Treaty on the Functioning of the European Union (hereinafter referred to as the TFEU). This right, and more specifically the power of the Union legislature to adopt legislative measures elaborating these rights, is found in Article 21 of the TFEU. Both provisions enshrine that the right of travel and residence is not absolute, but is granted subject to limitations and conditions established by the Treaties and provisions implementing them. What conditions and restrictions Member States may impose on the exercise of these rights are regulated by Directive 2004/38/EC.

It is established case law of the Court of Justice of the European Union that Union citizens derive their right of residence directly from the TFEU. This is also the starting point of Art. 8(e) of the Aliens Act 2000 (‘Vreemdelingenwet 2000’), which states that Union citizens have lawful residence as long as they maintain residence on the basis of the TFEU. From the moment Union citizens meet the conditions of residence required by Union law, their residence in the host Member State is lawful by operation of law.

Union citizens, as well as British citizens with a right of residence under the Withdrawal Agreement, who exercise their right of travel and residence may reside with their family members, regardless of the nationality of the latter, in a host Member State. The right of residence of family members serves the right of travel and residence of the Union citizen (and UK citizen with a right of residence under the Withdrawal Agreement) and is therefore referred to as a derivative right of residence.

Direct effect of the EU treaty

The starting point within Union law is the direct effect of the EU treaty. Treaty provisions can be invoked by any interested party before a competent national court. As a result, the Treaty articles are automatically part of the Dutch legal order. It is then up to the Member States to give substance to the treaty to which citizens must adhere. This thus also applies to the Withdrawal Agreement.

Deadline for applications under the Withdrawal Agreement

The Dutch legislature chose to include the deadline of Oct. 1, 2022, as the deadline for submitting an application under the Withdrawal Agreement in Chapter B13 of the Aliens Circular. However, the principle of legality requires that any action by the government must have a basis in law. The term as described in Chapter B13 of the Aliens Circular is nowhere included in the law and is therefore not a generally binding provision. This is because the Aliens Circular, in which the IND has included its policy, binds the IND but not an applicant for a right of residence under the Withdrawal Agreement and the term cannot therefore be included in a policy rule as binding in this way.

Who can still invoke the Withdrawal Agreement?

The IND states that the following persons may invoke a right of residence under the Withdrawal Agreement:

  1. You are a UK national or their family member. And were living in the Netherlands before 31 January 2020.
  2. You are a UK national or their family member. And you started living in the Netherlands after 31 January 2020 but before 1 January 2021.
  3. You are a family member and want to come and live with a UK national in the Netherlands:
  • The UK national has residency in the Netherlands based on the rules of the Brexit Withdrawal Agreement; and
  • the family bond between you and the UK national already existed before 1 January 2021.

While most UK nationals who meet the abovementioned conditions for a right of residence under the Withdrawal Agreement have already applied for verification of a right of residence under the Withdrawal Agreement before the Oct. 1, 2022 deadline, this is not true for all. There are several categories of (family members of) UK nationals who have not had the chance to apply for verification to the Withdrawal Agreement. Some of these categories are explained below.

Privileged

(Family members of) UK nationals who already resided in the Netherlands as privileged persons before January 31, 2020 is one of the categories of ‘third country nationals’ who did not have to apply for verification of the Withdrawal Agreement. They derive lawful residence from their privileged document and thus never had to apply for a residence permit. They can, however, invoke the Withdrawal Agreement retroactively.

Residence under a different type of residence permit

Another example of (family members of) UK nationals who have not yet applied for residence under the Withdrawal Agreement are foreign nationals who, perhaps given the uncertainty about their right of residence at the time of Brexit negotiations, have applied for a regular residence permit. This may, for example, be a skilled migrant permit. If a (family member) of a Brit in such a situation where to now apply for residency under the Withdrawal Agreement, the IND would wrongfully not process it unless it could be shown that there was an excusable reason for the late submission.

Permanent residence (duurzaam verblijf) if no previous residence document has been granted

Although (family members of) UK nationals who currently hold a residence permit pursuant to the Withdrawal Agreement can obtain permanent residence after 5 years of lawful residence without any problems, the IND states that this is no longer possible for (family members of) UK nationals who have never been granted a residence permit showing that they derive lawful residence from the Withdrawal Agreement. This means that, according to the IND, the above categories (among which the privileged persons and holders of regular residence permits) can no longer invoke the Withdrawal Agreement. However, also for these categories of aliens, the "deadline" that the IND included in its policy does not contain a legal basis and thus cannot be invoked.

Advantages of permanent residence compared to a regular permanent residence permit

Obtaining permanent residence under the Withdrawal Agreement has many advantages compared to obtaining a regular permanent residence permit.

  1. No civic integration exam.

(Family members of) UK nationals who can prove residency under the Withdrawal Agreement are not required to pass an integration exam in order to qualify for permanent residence. An applicant for a regular permanent residence permit (Dutch permanent residence or EU long-term residence) must successfully complete the civic integration (A2-level Dutch) exam before they can apply for permanent residence.

  1. More favourable policy for moving of main residence

In the case of a (family member of) a UK national with permanent residence under the Withdrawal Agreement, the IND assumes that the main residence has been moved from the Netherlands if the holder has remained outside the Netherlands for more than 5 consecutive years. For a holder of a regular Dutch permanent residence permit and EU long-term permanent residence, this is six months and a full year, respectively. It is therefore much easier for a (family member of) a UK national to return to the Netherlands after temporary absence.

  1. Less onerous income requirement

In order to obtain permanent residence through a test against the Withdrawal Agreement, a (family member of) a UK national must demonstrate that they have been economically active for 5 years or that they have had sufficient means to sustain themselves for 5 years. This means requirement is much less stringent that for an application for a regular permanent residence permit or EU long-term residence, where an applicant must demonstrate that they have sufficient means of support independently and permanently. For an explanation of the means requirement for a regular permanent residence application, please refer to George Qiao's article.

  1. Less expensive application

A practical advantage is that a review of the Withdrawal Agreement for permanent residence is a lot cheaper than an application for a regular permanent residence permit. In 2024, the fees for an application for a regular permanent residence permit or EU long-term resident are EUR 228,- while a test against the Withdrawal Agreement is only EUR 76,-.

At Mynta Law, we understand the significance of the Withdrawal Agreement implications. Our experienced team of immigration lawyers is well-versed in the intricacies of the Union law and can provide expert guidance and assistance throughout an application process. Contact us today to learn more about your rights and how we can support you.

Charley Nieuwesteeg, LL.M.
Author
Charley Nieuwesteeg, LL.M.
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