Can EU/EEA/Swiss/British citizens (and their family members) in the Netherlands receive coronavirus support?

21 Apr, 2020 | News

In most cases, yes.

Of course it’s the Dutch government’s job to always note, as a technically correct statement, that “it can affect an EU citizen’s right of residence” if they receive social assistance (by which they hope to discourage EU citizens from even applying); but speaking as a scholar of the rights of EU citizenship, I can say confidently that an EU citizen can really only be told that they have to pack their bags and leave as a result of claiming social assistance if they land at the bottom of the following ladder of possible ways in which they can be entitled to social assistance.

  • Top of the ladder (holders of a permanent residence status):

Does the EU/EEA/Swiss citizen (or British citizen who is already living in the Netherlands, and who therefore will be entitled to equal treatment to EU citizens on the basis of the Withdrawal Agreement between the UK and the EU) have a permanent residence document? This card will say on the back, in the fine print, “Duurzaam verblijf voor Burger van de Unie” or (in the case of British citizens who get a newfangled permanent residence permit under the withdrawal agreement) “Terugtrekkingsakkoord onbepaalde tijd”.

(For that matter, the EU/EEA/Swiss/British citizen might have a really old-school Dutch permanent residence permit that says “Verblijfsvergunning regulier voor onbepaalde tijd”, probably if they got it before 2009 or so.)

In all three of those cases, if you are this person: yes, absolutely. Do not hesitate. You have an absolutely unconditional right of stay in the Netherlands that also entitles you to equal treatment with Dutch citizens when it comes to entitlement to any and all forms of social or financial assistance.

  • Next rung down: do you not have a permanent residence document, but do you think you might qualify for one?

Are you an EU/EEA/Swiss/British citizen who has been living in the Netherlands (and registered at a Dutch address) for five years or longer, and for any period of five years (starting around 2003) during your residence here, have you always satisfied one of the following criteria (or were you here as the spouse/partner/dependent of an EU citizen, whether you yourself are an EU citizen or a non-EU citizen, who did always satisfy one of those criteria)?

  1. Working at a job in salaried employment for an average of at least 64 hours a month
  2. Looking for work and receiving unemployment benefit after losing a job in employment
  3. Being self-employed (owning a business or being a freelancer) and having a documentable profit from your business (i.e. you’ve filed income tax over it) of an average amount of (in any case) about €1000.00 gross monthly (these are all rules of thumb, but I’m giving an amount that will always be satisfactory), or being able to demonstrate that you out an average of at least 64 hours a month into your business
  4. Being a full-time student (without a job– if you had a job for at least 64 hours a month, see #1) and being able to say that you always had health insurance and were able to support yourself during that time
  5. You (or the EU citizen you were dependent on) was just living in the Netherlands as a pensioner or otherwise enjoying life, but can say that they always had health insurance and sufficient documentable resources (savings, pension, or income from elsewhere) to live off of without making use of social assistance

Then you may already have a right of permanent residence by the automatic operation of EU law, i.e. whether you applied for confirmation of it or not, which puts you at the top of the ladder and unconditionally entitled to social assistance. It’s probably a good idea to look into applying for a permanent residence document, if need be after the fact of applying for social assistance.

  • Next rung down, for EU citizens who have not been here for five years or who do not satisfy the conditions above: do you have (or did you have until very recently) a job in salaried employment in the Netherlands? (In EU jargon: you are a “worker”)

Note that if you are an EU citizen (or equivalent), you must absolutely never fear claiming unemployment benefit (“WW”) from the UWV, whether it’s for full or partial unemployment. (One particular government benefit related to the corona crisis is called NOW, whereby the Dutch government is making it easy for Dutch employers to [partially] lay off their employees and cover the difference in hours with employment benefit.)

This is a benefit that you paid for (a so-called “contributory benefit”) with withholdings from every single month’s salary. From the perspective of EU law, this is not a need-based handout, but a benefit aimed to help you get back on your feet and back on the labor market after full or partial unemployment. In fact, you may be asked to submit proof of looking for work to keep getting WW (which they are unlikely to ask under the current circumstances, if the partial unemployment was corona-related).

Note, as well, that if it gets really bad and the EU citizen’s WW benefit runs out or is insufficient to get by, and it can be said of the EU citizen that she had already been participating in the labor market (for an average of 64 hours a month) for at least one year, then the EU citizen and her family members probably can also claim need-based social assistance, as a valid “bridge” to reintegration in the labor market, without consequence. What it’s all about, from the perspective of EU law, is whether the EU citizen can be considered to be making a decent attempt to find paid work.

And in almost all cases, it can be said with almost complete certainty that partial or supplemental social assistance (while continuing to work) is OK.

  • A rung on the same level is: do you work in self-employment, as a freelancer (“ZZPer”) or business owner, and is your business registered with the KvK? 

If your business had been going well enough for you and your family members to get by, in any case for the past 12 months, and if you’ve also been maintaining a decent administration for your business to be able to document your profits and losses (having a Dutch bookkeeper do your VAT and income tax filings based on all your invoices and receipts, or fairly diligently doing that yourself), but you have now suffered a sharp decline in revenue due to the corona crisis (such that you are having trouble getting by), then you should probably not hesitate to apply for Tozo (Tijdelijke Overbruggingsregeling Zelfstandig Ondernemers) from your municipality.

The nice thing about the conditions for being able to qualify for Tozo (in particular the “hour criterion”, i.e. that you work at least 1225 hours a year in self-employment, the same criterion that applies in Dutch tax law to being able to get the self-employment deduction or zelfstandigenaftrek) is that they more than overlap with the criteria of EU law for an EU citizen to be able to say that they are “genuinely and effectively engaged in” self-employed activities.

So in a similar way, if you can say that you are applying for the Tozo, either the income assistance or the business loan, not just because you personally need it, but because it enables you to stay on your feet and keep your business afloat (in other words, to help you in your entrepreneurship), the non-discrimination principle of EU law says that as a self-employed person, you have to enjoy equal treatment to Dutch citizens.

Again, just make sure that if asked, you can document your business activities and the impact that the corona crisis had on it.

  • Not on the ladder?

If you don’t already have a right of permanent residence, and you cannot reasonably say that having been here for less than five years, your main purpose in life in the Netherlands has not been working in employment, looking for work, or being self-employed (in other words, you might just be studying full-time and not working, or otherwise enjoying life, living off of savings or a pension or income from outside the Netherlands), then no, it’s probably not a good idea to apply for any form of social assistance from the Dutch government (aside from minor benefits like health insurance subsidy).

  • But what if I’m British? Won’t applying for Tozo jeopardize my application for a residence document based on the Withdrawal Agreement?

Nothing about the conditions for either a permanent or non-permanent residence permit based on the Withdrawal Agreement is any different than the conditions that apply to EU citizens.

If you already qualify for a permanent residence permit based on the Withdrawal Agreement, for the reasons named above, nothing you do after you had those five qualifying years of residence can affect you anyways.

And if you are applying for a non-permanent residence permit under the Withdrawal Agreement on the basis of still being able to be considered a “worker” or “self-employed” on the same basis as EU citizens, i.e. by looking at the context of you generally being economically active, and the benefit can be seen as supplementing or augmenting your economic activity, then it should not be a problem. Just keep in mind that when it comes time to apply for your permanent residence permit after having been here for five years, you will have to demonstrate that looking back at this time, your claiming a benefit was something of an exception to the big picture of either being economically active or independently self-supporting for five years.

Jeremy Bierbach, attorney at Franssen Advocaten