The dreadful issue of residence gap (“verblijfsgat”) and latest positive developments

If you have been living in the Netherlands as a non-EU national, you have probably heard of the dreadful phrase “residence gap” (also known as “verblijfsgat” in Dutch). The word “verblijfsgat” can be compared to the Grendel monster in Old English poem Beowulf, as a small residence gap can wreak havoc and  dash one’s hopes of becoming a permanent resident and/or acquiring Dutch nationality. So, what is “residence gap”?

Residence gap can be understood as a (short) period of having no legal stay in the Netherlands. However, there are different types of residence gaps, and residence gaps can occur in a myriad of ways. Therefore, in this article, we will examine the complex issue of residence gaps in detail.

How can a residence gap occur?

A residence gap can occur in a myriad of ways. In the following paragraphs, we will explain it through giving a few hypotheticals.

A forgetful student

Pursuant to Dutch laws, when one fails to renew his/her permit in a timely fashion, a residence gap can occur. For example, Jane is a Canadian student, who has been living four consecutive years in the Netherlands. Her current residence permit was valid until 1 December 2023. However, due to busy exam schedules, she forgot to renew her permit before 1 December 2023. Instead, she filed an extension application on 15 January 2024, and the IND granted her a new permit as from her application date (ie. 15 Jan 2024). In this situation, Jane will have a (hard) residence gap during the period between 1 December 2023 until 15 January 2024, as she did not have any form of legal stay during this period. Why can’t the IND renew her permit continuously as from 1 December 2023?  This is because of article 26 of the Dutch Immigration Act, stipulating that the IND cannot grant a permit with a commencement date earlier than the application date. As a result, Jane’s pathway towards the status of Dutch indefinite permit (“regulier onbepaalde tijd”), the status of EU long term stay (“EU langdurig ingezetene”) and Dutch nationality (“naturlisatie”) gets reset, meaning that Jane will have to wait for at least another five years before qualifying for permanent residence and/or naturalization. Jane may argue that she was busy with her studies all the time, and that she was physically in the Netherlands all the time. However, most likely, these arguments will not be sufficient.

A grumpy IND officer

Will it be enough if someone always files his/her new application before the expiry date of his/her current permit? There is no clear answer to this question, as it really depends. For example, Olajuwon is a Nigerian student and has been living and studying three years in the Netherlands. Olajuwon’s permit was valid until 1 December 2022. At a student club, Olajuwon met his Dutch girlfriend, Marije. Olajuwon and Marije fell in love at first sight. Since then, Olajuwon and Marije have been living together. Prior to the expiry date of Olajuwon’s student permit, Olajuwon and Marije filed a new application with the IND for the purpose of converting Olajuwon’s visa status to “partner visa”. Olajuwon filed the application with the IND on 20 November 2022 (ie. 10 days before the expiry date of his student permit). Unfortunately, as the IND was facing a huge backlog, it took the IND about five months to review Olajuwon’s application. On 1 May 2023, Olajuwon received a letter from the IND, in which a grumpy IND officer asked for a few additional documents (eg. Marije’s recent salary slips, recent chat history between Olajuwon and Marije and more holiday pictures). On 14 May 2023, Olajuwon and Marije sent the requested documents by post to the IND. Three weeks later, Olajuwon received a letter from the IND, granting him a partner permit as from 18 May 2023. Although Olajuwon gets a partner visa, he also gets a (soft) residence gap during the period between 1 December 2022 and 18 May 2023. Why is it a soft residence gap? The residence gap that Olajuwon gets is "soft", as Olajuwon had a type of legal stay throughout the pending application phase. Pursuant to article 8 (g) of the Dutch Immigration Act, one has legal stay during a pending application. However, this type of legal stay is a kind of “formally restricted stay” (“formeel beperkt verblijfsrecht” in Dutch). In this example, Olajuwon did not have an official residence card for this period. As a consequence, Olajuwon’s pathway towards both Dutch indefinite permit (“regulier onbepaalde tijd”) and naturalization will be reset, meaning that Olajuwon will need to stay another five years before he can possibly qualify for Dutch indefinite permit and/or naturalization. However, with regard to the status of EU long term permit (“EU langdurig ingezetene”), Olajuwon will retain (some of) his previous “student” years, and the period between 1 December 2022 and 18 May 2023 will not be seen as a gap, as the Dutch Council of State ("Raad van State") holds in an opinion. Nevertheless, the same period between 1 December 2022 and 18 May 2023 will not be counted towards the status of EU long term stay, and the time that Olajuwon spent on his student permit will count only 50% towards the status of EU long term stay. This is still quite harsh, as Olajuwon will have lost more than half of the time that he has spent in the Netherlands. If Olajuwon wants to qualify for the status of EU long term permit, he still needs to live at least another three and half years in the Netherlands.

An ill highly skilled migrant

When the IND revokes one’s permit, a residence gap can occur as well. Anisa is from Indonesia. After studying four years in the Netherlands, Anisa graduated from a Dutch university with a Master’s degree (cum laude). Before graduation, she managed to find a job at a Dutch company. The Dutch company helped her apply for a highly skilled migrant visa. As Anisa is a recent graduate, the reduced salary threshold of 2631 euros gross per month (standard of 2023) applies to Anisa. As from 1 February 2023, Anisa obtained a highly skilled migrant visa. Her contractual salary is exactly 2631 euros gross per month. However, in her contract, it states that, in the event of sickness, Anisa will receive only 70% of the agreed salary. Unfortunately, in August 2023, Anisa fell ill. During the period between August 2023 until end November 2023, Anisa was busy with rehabilitation. In accordance with the contractual provisions, Anisa’s employer only paid her 70% of the agreed salary. As from 1 December 2023, Anisa resumed working fulltime. However, suddenly, Anisa received a letter from the IND, in which the IND contends that Anisa failed to meet the required salary threshold of 2631 euros throughout the period between August and November 2023, and that the IND intends to revoke Anisa’s highly skilled migrant permit retroactively as from August 2023 until 1 December 2023. Anisa is very upset, as she understands that she will get a residence gap, she will lose all her previous years, and that she will have to wait for another five years before qualifying for permanent residence and/or naturalization.

Recent case law

With regard to a situation similar to Anisa’s, in a recent (unpublished) opinion (dated 10 August 2023), the Court of the Hague (Rechtbank Den Haag) holds that a foreigner will retain “formally restricted stay” during the administrative review and court appeal procedures, provided that a foreigner files such an administrative review petition and/or court appeal against an IND revocation decision. In relation to this Court of the Hague opinion, the IND did not file an appeal with the Dutch Council of State (“Raad van State”).  Therefore, if a residence permit gets revoked and the foreigner fights against the revocation in a legal proceeding, it is likely that he/she will retain formally restricted stay throughout the legal proceeding(s), which can be understood as a soft gap, preserving some of the previous years for the purpose of applying for the status of EU long term stay in future. For example, half of Anisa’s study time will be lost and Anisa will need to wait for another two and half years before she can apply for an EU long term permit. If Anisa wants to apply for naturalization, she will need to wait for another five years. However, if a foreigner does not file an appeal against the imminent revocation of his/her permit but accepts the IND revocation, he/she will lose all the previous years. 

Slightly positive policy developments

Following the Dutch childcare benefits scandal (“toeslagenaffaire”), Dutch governmental agencies have started reflecting on some of their policies and practices. Since 1 July 2022, the IND has adopted a slightly more lenient policy towards late renewal applications. Let's explain this new policy through giving another hypothetical. For example, since December 2019, Troy has been holding a partner visa. Troy’s partner visa was valid until 1 January 2024. Due to all the festive activities around Christmas and new year celebration, Troy forgot to send his partner visa renewal application to the IND before 1 January 2024. When Troy realized that his permit had expired, he quickly sent his renewal application to the IND on 20 January 2024. In this situation, the IND will renew Troy’s partner visa continuously as from 1 January 2024. Under the new IND policy, a permit will be renewed continuously, provided that the renewal application is received within four weeks after the expiry date. Nevertheless, please be aware that this new policy only applies to renewal applications (not “change of purpose” applications). For example, if Troy applied for a highly skilled migrant visa on 20 January 2024, he would probably get a residence gap between 1 January 2024 and 20 January 2024, resetting his clock towards the status of permanent residence and naturalization.

If you want to examine the issue as to whether you have had a residence gap in the past, we can help you check through requesting a copy of your file from the IND. Should you have any other questions about Dutch immigration laws, please feel free to contact us too.