Losing the right to stay in the Netherlands can be an unsettling experience. After building a life in the country, a migrant may suddenly face uncertainty about work, housing, travel and future immigration plans. In some cases, the person may also risk a residence gap (verblijfsgat), which can have consequences for a future application for permanent residence or Dutch citizenship.
The situation can arise more easily than many people expect. A relationship may come to an end, meaning that a residence permit based on a partner is no longer valid. A recent university graduate may reach the end of an orientation year permit without having found a suitable job. A highly skilled migrant may be dismissed and may not secure a new employer before the search period expires. An international student may obtain insufficient study credits during the academic year, after which the educational institution reports the matter to the IND and got his student visa cancelled.
In these circumstances, leaving the Netherlands immediately or within a short period requested by the IND is not always the only option. Dutch immigration law may provide some temporary leeway. However, it is important to act quickly and to choose a legally justifiable strategy.
Procedural temporary lawful residence under Dutch immigration law
A valid residence permit is not the only possible basis for lawful residence in the Netherlands.
Article 8 of the Dutch Aliens Act (Vreemdelingenwet 2000) recognises several situations in which a person may remain lawfully in the Netherlands while an administrative procedure is pending. Depending on the circumstances, this may apply while the IND is considering a new residence application, an objection (bezwaar) against a negative decision or an appeal (beroep) before the court.
In some cases, the pending procedure allows the applicant to remain in the Netherlands until a decision has been made. The applicant may request a residence endorsement (verblijfsaantekening) from the IND. This is a sticker placed in the passport as evidence that the procedure may be awaited in the Netherlands.
Where an objection or appeal does not automatically suspend the obligation to leave the country, it may be necessary to request an interim measure (voorlopige voorziening) from the court. Timing is crucial. A person should not assume that submitting any application or objection could automatically create a right to remain in the Netherlands.
Temporary breathing space to find a sustainable solution
A pending administrative procedure may provide valuable breathing space. Depending on the type of application and the individual circumstances, this may amount to several months. In many cases, the relevant period is approximately 3 to 6 months, although the precise duration can never be guaranteed.
This time can be used to identify a sustainable residence solution. For example, a person may need time to find a new employer, prepare an application for residence as a self-employed person, explore whether a family-based residence route is available or gather the documents required for another appropriate residence purpose.
However, procedural lawful residence is not the same as a new residence permit. It is a temporary legal position while the IND or the court considers a genuine application or legal remedy. The applicable work rights and travel possibilities may also differ from those attached to the previous residence permit.
Why the correct application route matters
Choosing the correct procedure is not always straightforward.
The online IND portal is designed primarily for standard situations. A person attempting to submit an application online may discover that the portal does not intake the application or immediately indicates that the person does not qualify. This does not necessarily mean that no legal solution exists. It may mean that the case requires a different application route, a written form, an application for a change of residence purpose or a substantiated request based on an applicable exception.
There is also an important difference between extending an existing residence permit and applying for an entirely new residence purpose. An orientation year residence permit, for example, cannot simply be extended. A graduate who wishes to remain in the Netherlands must normally qualify for another residence route. Similarly, a highly skilled migrant whose employment has ended must take into account the applicable search period and the remaining validity of the residence permit.
A hurried or technically incorrect application can create a false sense of security. If the procedure does not provide lawful residence, the applicant may still be required to leave the Netherlands. This can result in a residence gap and may, in certain circumstances, lead to a return decision (terugkeerbesluit).
The MVV requirement can complicate a new application
For many nationalities, a new application involves an additional difficulty: the requirement to obtain a visa in the applicant’s home country, as known as provisional residence permit (machtiging tot voorlopig verblijf, MVV).
An MVV is an entry visa for a long-term stay in the Netherlands. For most nationalities, the general rule is that the applicant must obtain the MVV before receiving a Dutch residence permit. This normally requires the applicant to complete part of the procedure from abroad.
That can create a frustrating situation. One of the intended purposes of seeking temporary lawful residence is to avoid leaving the Netherlands abruptly, while the MVV requirement appears to require precisely that.
Dutch immigration law nevertheless provides exceptions to the MVV requirement in various situations. Depending on the applicant’s previous residence history and personal circumstances, it may be possible to submit a new application from within the Netherlands without the need of getting a new MVV. Whether an exception applies must be assessed carefully and supported with the correct documentation.
This is one of the reasons why professional guidance can make a meaningful difference. Selecting the correct application form is not sufficient. The legal basis for applying from within the Netherlands must also be identified and explained clearly.
Avoiding a residence gap
A residence gap can have lasting consequences.
Where possible, action should be taken before the existing residence permit expires or shortly after it becomes clear that the conditions are no longer met. An application submitted too late may interrupt the continuity of lawful residence. This may delay eligibility for permanent residence or Dutch citizenship.
The risk is not limited to permits that reach their expiry date naturally. It can also arise where the IND withdraws a permit retroactively because the underlying conditions were no longer satisfied. Examples include the end of a relationship, the termination of employment or insufficient academic progress.
A timely assessment can help determine whether an alternative application should be prepared immediately, whether an objection should be submitted against a withdrawal decision or whether both steps are appropriate.
A genuine legal basis is essential
Dutch administrative law offers procedural protection, but it should not be abused.
Any new application, objection or appeal must have a genuine factual and legal basis. Submitting an application solely to create an artificial right of residence, without any realistic connection to the residence purpose invoked, can have serious consequences. For instance, a person who does not intend to run a business nor does he have any income, submits the self-employment visa application.
In its judgment of 3 July 2024, ECLI:NL:RVS:2024:2711, the Administrative Jurisdiction Division of the Council of State considered a case in which a person submitted an application for assessment under the EU law while in immigration detention. The application was not supported with the necessary documents, opportunities to complete the application were not used and the circumstances indicated that the application had been submitted to create an artificial procedural advantage. The Council of State concluded that this constituted an abuse of rights. The application therefore did not create procedural lawful residence.
The lesson is not that applicants should avoid using the procedural protections available to them. On the contrary, these protections exist for a reason. The lesson is that the chosen procedure must be legally defensible and properly substantiated.
Where false statements, fraud or forged documents are involved, the consequences can be more severe. In addition to the rejection of an application or withdrawal of a residence permit, the IND may report suspected criminal offences to the police.
How Pathway Partners may be able to help
When a residence permit is about to expire or is at risk of being withdrawn, timing is often decisive. Waiting until the last moment may significantly reduce the available options.
Pathway Partners can assess your immigration position and help identify a suitable strategy. Depending on your circumstances, we may be able to assist with:
-
reviewing the validity of your current residence permit and the applicable deadlines
-
identifying an alternative residence purpose
-
assessing whether you may apply from within the Netherlands
-
advising how to extend the legal stay in the Netherlands through administrative procedures
-
examining whether an exception to the MVV requirement may apply
-
preparing a substantiated residence application
-
assisting with an objection against the withdrawal or refusal of a residence permit
-
helping you avoid an unnecessary residence gap; and
-
coordinating further legal steps where court proceedings may be required.
Every situation is different. A procedure that is appropriate for one applicant may not work for another. The purpose is not merely to gain time, but to use the available legal procedures responsibly while working towards a sustainable residence solution.
If your residence permit will expire soon, if your personal circumstances have changed or if the IND has announced that your permit may be withdrawn, contact Pathway Partners as early as possible. A timely assessment may help protect your lawful residence in the Netherlands and preserve your future options.