Netherlands: EU Proof of Entitlement to Residency Status and Verification Against EU Law (2004/38/EC)

Question

Just got back from a rather stressful appointment at the IND (Dutch immigration), where we attempted to apply for proof of entitlement to residency status for me (as a British/EU citizen) and for verification against EU law for my (Thai) boyfriend (which would be dependent on me getting the proof of entitlement first). Long story short, they told us they couldn't process my proof of entitlement application on the basis of the evidence I was providing, and therefore couldn't process my boyfriend's verification against EU law application. I'm still digesting what we've been told (our situation has quickly become very complex!), but I think the person we saw has the rules wrong at least in part, and I'd appreciate any feedback you might have.

(There's also some background to our situation on this previous question I asked recently. For info, I'm already fully registered with the Gemeente (local municipality) etc, and I have all my affairs in order except this entitlement to residency status, which wouldn't be required if I weren't looking to live here with my non-EU boyfriend under 2004/38/EC freedom of movement rules.)

I had intended to register as resident here on the basis of full-time employment that will begin on 18 July. I took along my signed employment contract as evidence of this, but was told that they couldn't process it on this basis because I haven't yet started work - and that in fact I'd need to be working for at least a month or two before they could do it, to allow information on my contracted position, salary etc etc to feed through from my employer to government systems. I've never heard of any requirement for this kind of waiting period before, and it's not mentioned on application form 6021 for obtaining proof of entitlement to residency status.

I am also registered as self-employed here (since 12 June), and as an alternative (for the purposes of the application for proof of entitlement) I had prepared my self-employment registration certificate, a summary of my income from self-employment since 12 June, and copies of invoices sent to clients since that date, as well as a monthly summary of income in self-employment from before 12 June, when I was self-employed in Thailand (albeit unofficially) prior to moving to the Netherlands (on 12 March) and subsequently registering as self-employed here. ('Monthly records of business results' is listed as one of the types of possible evidence listed on application form 6021 for obtaining proof of entitlement to residency status). Clearly, since I've been registered self-employed here for not even a month now, the amount of evidence I can produce is still limited (I don't yet have a balance sheet or profit and loss account to provide), and I don't have (or really want) an accountant of financial advisor who can provide a statement or prognosis (something that's also listed as possible evidence on form 6021). I was told that I didn't have enough evidence of my self-employment to be able to be registered on this basis.

The person we saw suggested that instead registering as self-sufficient would be a way to get around this, but I don't have the savings required (around EUR 10,000-20,000, according to her, although she didn't seem sure and had to ask colleagues - much like she did about everything else she advised!) so that's not really an option.

So the end result is that they couldn't/wouldn't give me my proof of entitlement and, as a result, they couldn't process my boyfriend's application for verification against EU law. Her only advice was that my boyfriend should leave the Schengen area, come back in three months and then start again with this whole process once I have already been in full-time employment during that time. (He arrived here on a facilitation visa on 12 March, so we're now past the three-month period in which he is meant to apply for verification against EU law, although I still agree with others that EU law and the Schengen code indicate that he is not bound by that 90/180-day requirement - I pointed this out to the lady at the IND, but she insisted that the same rule applies to everybody who is in the Schengen area on a short-stay (type C) visa as he currently is.)

Clearly I'm not keen for him to leave the Schengen area (the most practical way to achieve this would be for him to return to Thailand) and for us to be apart for three months. But perhaps the bigger issue here is the looming nature of Brexit - who knows whether in three months' time I'll still be an EU citizen and whether my boyfriend will still be eligible to live here as my family member under freedom of movement rules.

I think I probably need to seek some legal advice as to our situation. Any thoughts in the meantime on whether the IND's position is correct (both in not processing the application, and the advice that he should leave the Schengen zone AND stay outside for three months before returning), or what our next move might be? Thanks in advance! My head is spinning at the moment.

Answer 1

Unfortunately, I have not had time to look into this in more detail, but here are some thoughts that may be of use:

I had intended to register as resident here on the basis of full-time employment that will begin on 18 July. I took along my signed employment contract as evidence of this, but was told that they couldn't process it on this basis because I haven't yet started work - and that in fact I'd need to be working for at least a month or two before they could do it, to allow information on my contracted position, salary etc etc to feed through from my employer to government systems. I've never heard of any requirement for this kind of waiting period before, and it's not mentioned on application form 6021 for obtaining proof of entitlement to residency status.

Consider the situation if you had arrived in the Netherlands as a job seeker. You would not necessarily have been "qualified" under article 7(1) (see 7(3), which extends 7(1) only to "a Union citizen who is no longer a worker," meaning that it applies to those who have lost their employment). Instead, you would fall under Article 14(4), which reads in part

4. By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:

(a) the Union citizens are workers or self-employed persons, or

(b) the Union citizens entered the territory of the host Member State in order to seek employment. In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.

So you and your family member are protected against expulsion. Now as a bizarre technical matter, you are caught between being a job seeker and being a worker, because you are no longer looking for work, yet you are not working. I do not know whether this has ever gone to court, but if it did I cannot imagine that a court would find that a former job seeker who has concluded an employment contract is suddenly and temporarily out of the scope of the directive before the employment actually starts.

I am also registered as self-employed here .... I was told that I didn't have enough evidence of my self-employment to be able to be registered on this basis.

I suspect that the standard of evidence has been tested in court and found reasonable, but even if it has not, you certainly don't have much motivation to serve as the test case. You might take it up with SOLVIT, but I wouldn't spend too much time on it, since you'll be working as an employee in less than three weeks' time.

The person we saw suggested that instead registering as self-sufficient would be a way to get around this, but I don't have the savings required (around EUR 10,000-20,000, according to her, although she didn't seem sure and had to ask colleagues - much like she did about everything else she advised!) so that's not really an option.

The text covering the self-sufficient in Article 7 reads thus:

have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State

The period of residence as self-sufficient is from 25 June to 17 July, or perhaps more reasonably from today until 17 July, or, least favorably to you, 12 March through 17 July. It's hard to imagine that you would need €10,000 to €20,000 savings (in addition to whatever income you can document) to support yourself for this period. It is certainly a ludicrous requirement for a stay of a few weeks. But again, it may be that the courts have considered the requirement and found it justified. You might consider trying to register as self sufficient for the period from July 2 through 17, but it's probably not worth it since it is so short.

... Her only advice was that my boyfriend should leave the Schengen area, come back in three months and then start again with this whole process once I have already been in full-time employment during that time.

As noted in a comment, he does not need to wait three months; the person you spoke with must be relatively unfamiliar with the application of the directive to short visits.

(... she insisted that the same rule applies to everybody who is in the Schengen area on a short-stay (type C) visa as he currently is.)

She's just wrong about that. Family members who are nationals of third countries are given type C visas, and the 90/180 rule simply does not apply to them. It's clear in a literal reading of both the Schengen Borders Code and the directive, as I believe I explained in my answer to your previous question. The problem, of course, is how to deal with officials who won't accept that. Did she describe any negative consequences that you or your boyfriend would face if he did not leave?

[Was the IND's refusal to process the application proper?]

It might have been. I suspect that the requirements you were told about have been imposed in accordance with various court cases. But I do not know. It is possible that they have not been tested in court, or they have been tested in court under fact patterns that may be distinguished from yours such that they are being applied to you inappropriately. But unless SOLVIT produces any results in your favor (which seems unlikely between now and the 18th), the only way to find out for sure is to go to court. This also seems unlikely, because you are not going to be put out of the country with a pending employment contract starting on the 18th, and (see above) neither is your boyfriend.

[What should we do next?]

I suppose this depends on whether you've received any concrete indications that you or your boyfriend will be punished in any way at any point. If not, you should probably just wait until the 18th and try again. If so, you may need to start quoting chapter and verse at those giving you these indications to try to cool them off.

As far as I can tell, if you decide to live in the Netherlands without documents, the worst that can happen is some sort of fine ("proportionate and non-discriminatory sanctions"). He should not be liable to expulsion from the country, as mentioned above, because of Article 14(4).

If your boyfriend is nervous about being out in public, he could carry copies of your passport and employment contract so he can explain why he doesn't yet have a residence card.

The Netherlands' transposition of the directive into national law, by the way, is the Vremdelingenbesluit 2000, and in particular Chapter 8, Section 2, Paragraph 2, comprising articles 8.7 through 8.25. These follow the language of the directive very closely. The criteria in the directive's article 7(1) are found here in article 8.12.

Interestingly, at 8.13, there seems to be a deadline of one month after the initial three-month period for the non-EU family member to apply for the residence card:

De vreemdeling, bedoeld in het eerste lid, meldt zich uiterlijk binnen een maand na afloop van de in artikel 8.11, tweede lid, bedoelde periode aan bij Onze Minister, in geval hij beoogt langer dan drie maanden in Nederland te verblijven, en dient daarbij een aanvraag in tot afgifte van een verblijfsdocument.

Translation:

The foreigner indicated in the first section [that is, the non-EU family member] reports at the latest one month after the expiration of the period indicated in article 8.11(2) to Our Minister [that is, the IND], if he anticipates staying in the Netherlands for more than three months, and submits therewith an application for a residence document.

The rest of that article lists the items that must accompany the application, namely a valid passport, the verklaring van inschrijving (declaration of registration) of the EU family member, and evidence of the relationship.

Another interesting point is in Article 8.16, which corresponds to the directive's Article 14(4), but is worded slightly differently. Rather than saying that no expulsion measure may be adopted, it says instead that "authorized residence does not end" (het rechtmatig verblijf endigt niet).