Retaining EU Rights of Residence

On March 8, it was International Women’s Day. On the Everaert website, an article was published to pay attention to the position of women with a dependent right of residence. Most people holding a dependent right of residence, are women. An example of a woman with a dependent right of residence, based on our practice, is the story of Sasha.

Sasha has Canadian nationality and arrived in the Netherlands in September 2017 to study. The University of Leiden applied for a residence permit for her with study as the purpose of residence. After two months of being in the Netherlands, Sasha fell in love with Susan, a woman who had also studied at Leiden University and had stayed in the Netherlands to work. As a person with a nationality from within the European Union, Susan is free to live and work within The European Union. After a short period of time, Sasha and Susan decide to live together in Leiden.

After a few months of studying, Sasha attends a university lecture for international students from outside the European Union, aimed at the possibility of continuing living in the Netherlands after completing their studies. First, the orientation year (search year) is discussed. The students will be eligible for the orientation year permit once they obtain their diploma at Leiden University. During the orientation year, they are free to work and can spend their time to submit a new application for a residence permit to continue their residence in the Netherlands after the orientation year ends. Secondly, the lecturer discusses the possibility to obtain a right of residence in the Netherlands as the partner of a citizen of the European Union, based on the so-called Residence Directive.

When Sasha has obtained all the required credits to obtain her diploma at the University, she files an application for the orientation year. She starts looking for a job and succeeds to find one on short notice. She mentions to her employer that for her to be able to work and live in the Netherlands, she will need a new residence permit before the end of her orientation year. Her employer has the recognized sponsor status with the IND and applies for a residence permit as a highly skilled migrant for Sasha. At first, Sasha is happy, but she does not like the feeling of being dependent on her employer for her stay in the Netherlands.

She talks to Susan and mentions her idea of applying for a right of residence as partner of a citizen of the European Union. It is January 2019, and Sasha and Susan have been living together for a year. To obtain this right of residence, Sasha and Susan must prove their exclusive and durable relationship, and prove that they have sufficient means of income to get by. In the application, they enclose a copy of their rental contract, photos, statements from friends and family regarding their relationship, and documents on their income. Six months later, the application is approved. Sasha now has a right of residence in the Netherlands as partner of a citizen of the European Union. To celebrate the newly obtained right of residence, Sasha and Susan decide to get married.

With the right of residence as partner of a citizen of the European Union, Sasha is free to work. She is no longer tied to her old employer and finds a new job with an employer that lacks the recognized sponsor status. After a few years, Susan decides that she wants to return to Spain in the future. For that reason, Sasha and Susan decide they no longer see their future together in the end. They end their relationship and get divorced in the summer of 2022. Sasha starts looking for a new home for herself. Susan has decided to go back to Spain as soon as possible.

Sasha has heard about the possibility to keep her current right of residence. Based on the Residence Directive, it is however required for Susan not to have left the Netherlands before the marriage formally ended. Fortunately, this is not the case. To retain the right of residence, the exclusive and durable relationship must have lasted at least three years, of which at least one year in the Netherlands. In addition, it must be proven that there are still sufficient means of income, and Sasha must still receive Dutch health insurance.

With help from a lawyer, Sasha notifies the IND in writing on the termination of her relationship with Sasha. She includes a copy of the initial application they filed in 2019, their marriage certificate and proof of the divorce, along with recent photos and recent documents regarding her income. This way, Sasha can prove she has the right to retain her right of residence. After a few months, the IND confirms that Sasha can indeed keep her right of residence. Now that her right of residence continues, she will be eligible for a permanent right of residence based on the same Residence Directive after five years, in 2024.

Do you have a dependent right of residence, based on your relationship with a citizen of the European Union, and does something change in your situation regarding the relationship or your income?  You may be able to keep your right of residence. For more information, you can contact Thomas van Houwelingen and Sofia Helbing.