(published 28 January 2020)
by Dr. Jeremy B. Bierbach
In the first part of this month, now that it is a sure thing that the United Kingdom will withdraw from the European Union at midnight on 31 January 2020, I received a number of increasingly panicked phone calls from British citizens living in the Netherlands.
In a twist that may seem cruel to some of them: I’m on holiday this last week of January. But I wouldn’t have gone away if I wasn’t confident that no one would really need my professional help this week.
It now looks likely that the Withdrawal Agreement, which has been passed by the British Parliament, will also be ratified by the European Parliament and will enter into force on 1 February: this provides that all British citizens who have established residence in an EU member state prior to the end of a transitional period (so prior to the end of 2020) will continue to enjoy the same rights of residence that they enjoyed as EU citizens. In the Netherlands, ‘establishing residence’ essentially means being registered in the Personal Records Database (BRP) of a Dutch municipality at a residential address. It makes no difference whether you own or rent this address, or if you have been given permission by the owner or master tenant to reside there as a lodger.
The Dutch government’s policy on a no-deal Brexit, in connection with which the IND already sent all British citizens residing at Dutch addresses temporary residence permits that would go into effect on Brexit day, will now no longer go into force. British citizens will still be invited to apply for either “definite” or “indefinite” residence documents (i.e. photo ID cards similar to those issued to non-EU citizens legally residing in the Netherlands) that they can use to prove their rights of residence. There is nothing that needs to be done right now: just wait. Your rights of residence, for the time being, still exist by the operation of law and are not dependent on possessing any document.
From the phone calls I have received, there seems to be some confusion about the distinction between “definite” and “indefinite” residence documents, exacerbated by an oft-made, but inaccurate, description of these as “temporary” vs. “permanent”. Many British citizens who have only recently moved to the Netherlands, for instance, have been asking me what they can do to already get a “permanent” residence document. Nothing– you won’t yet get an indefinite residence document if you haven’t at least already lived for five years in the Netherlands. This is nothing to worry about: the “definite” residence document does not mean that your rights of residence are “temporary” or particularly precarious, but simply that for the time being, your rights of residence are conditional : the exact same conditions (which are so unobtrusive that you probably weren’t even aware of them) that apply to any EU citizen who established residence in a host member state less than five years ago.
In short: if you maintain a modicum of economic activity in the Netherlands (either in employment, or in self-employment), or you are self-sufficient with financial resources from other sources, you will satisfy the conditions. After five years of satisfying those conditions (either pre- or post-Brexit), you can then apply for your indefinite residence document, which will evidence your unconditional right of residence (and unconditional right to need-based social assistance) in the Netherlands.
To sum up, in the wise words of Douglas Adams: