YES THEY CAN! (Can residence permit holders apply for the coronavirus support (“Tozo”) for ZZPers?)

[NOTE! I am leaving this messy posting of chronological updates up only for historical interest; I’ve written a consolidated and updated posting here.]

Friday evening, 17 April 2020

YES! The State Secretary of Justice and Security has communicated to Parliament that claiming a Tozo benefit will not have any negative consequences for holders of residence permits who are required to have a certain income-earning capacity (such as holders of residence permits with the purpose “arbeid als zelfstandige”, i.e. work in self-employment).

Some news as of Friday afternoon, 17 April

…but still rather ambiguous, inconsistent and unsatisfying news for the time being. It turns out that on 9 April, members of parliament in the Commission on Social Affairs and Employment Opportunity did ask the government a question about this matter:

De leden van de GroenLinks-fractie maken zich zorgen over de groepen die alsnog tussen de wal en het schip lijken te vallen, ondanks de ruime regelingen die zijn opgezet. Kunnen mensen die korter dan vijf jaar legaal en onafgebroken in Nederland zijn, gebruik maken van de Tozo-regeling zonder dat dit mogelijk negatieve gevolgen heeft voor hun verblijfsrecht? Is de Staatssecretaris bereid om voor mensen met een verblijfsvergunning voor bepaalde tijd, een uitkering op grond van de Tozo-regeling bij wijze van uitzondering wél als zelfstandig middel van bestaan aan te merken, zodat dit geen bedreiging vormt voor de eventuele verlenging van de verblijfsvergunning? 

My translation:

The members of the GroenLinks faction are concerned about groups that still seem to fall between the cracks, in spite of the generous support schemes that have been set up. Can people who have less than five years’ uninterrupted legal residence in the Netherlands make use of the Tozo scheme without this possibly having negative consequences for their right of residence? Is the State Secretary prepared to make an exception for people with non-permanent residence permits to consider a benefit based on the Tozo scheme to be an independently-earned source of income, so that it will not pose a threat to the ability of these people to renew their residence permits?

The State Secretary of Social Affairs and Employment Opportunity, Tamara van Ark (VVD) responded in writing:

45. In Nederland rechtmatig verblijvende personen kunnen als zij aan de criteria van de regeling voldoen, aanspraak maken op de Tozo-regeling, WW of algemene bijstand. Van personen met een verblijfsvergunning die aanspraak maken op de Tozo-regeling hoeft door de gemeente geen melding te worden gemaakt bij de IND. Het aanvragen van algemene bijstand kan gevolgen hebben voor de verblijfstatus, zowel voor mensen met een verblijfsvergunning als voor EU-burgers. De IND hanteert coulance ten aanzien van personen van wie de verblijfsvergunning afloopt (en door wie geen verlenging wordt aangevraagd) en voor EU-burgers die tijdelijk vanwege de huidige situatie niet terug kunnen naar het land van herkomst. Dit betekent dat de periode van ’overstay’ personen niet wordt aangerekend bij een nieuwe aanvraag om een verblijfsvergunning of visum of bij het uitreizen naar het land van herkomst na de coronacrisis. Personen zonder geldige verblijfstatus kunnen geen beroep doen op algemene bijstand.

46. Hiervoor verwijs ik naar het antwoord op vraag 45. Daarmee hoeft de Tozo-regeling niet bij wijze van uitzondering als zelfstandig middel van bestaan te worden aangemerkt.

My translation (with sentences numbered):

45. (1)Persons who are legally residing in the Netherlands can make use of the Tozo scheme, unemployment insurance or general need-based social assistance. (2)For people with a residence permit who make use of the Tozo scheme, their municipality does not have to report this to the IND. (3)Applying for general need-based social assistance can have consequences for someone’s immigration status, both for people with a residence permits and for EU citizens [Note from the author of this blog post: see my new posting on EU citizens]. (4)The IND is being lenient for people whose residence permits are expiring (and who are not applying for a renewal) and for EU citizens who temporarily are not able to return to their country of origin. (5)This means that the period of ‘overstay’ will not be held against them if they apply for a new residence permit or visa or when leaving to return to their country of origin after the corona crisis. (6)Persons without a valid immigration status cannot make any use of social assistance.

46. [As to the question of whether Tozo can count toward someone’s independently earned income:] I hereby refer to the answer to question 45. This means that no exception has to be made to consider the Tozo scheme to be independently earned income.

Analysis: this particular state secretary (i.e. deputy minister in government) seemed to be a bit out of her depth on answering this question. The first sentence of answer 45 is correct: yes, anyone who has a valid residence permit can apply for and get Tozo (as far as the legislation on social benefits itself is concerned). We knew this. The second sentence is intriguing but also a bit unclear: is this a statement of fact (that it’s up to municipalities) or is she also hereby saying that municipalities should not report Tozo claims to the IND? Does she have the authority to say that? The third sentence is obvious: yes, we know this. But it’s a bit unclear if she is making a distinction between Tozo (which is in fact a form of need-based non-contributory social assistance) and all remaining forms of need-based non-contributory social assistance. And the fourth and fifth sentences [where her assistants probably cribbed the answer from the IND website] do not answer the question that was asked, since obviously there’s no need for concern about this for residence-permit holders who are leaving anyways. The sixth sentence is obvious.

And answer 46 makes no sense at all, in light of the incoherence of answer 45.

Takeaway: We still don’t have the answer we really need: what is the government going to tell the IND to do with reports of non-permanent residence permit holders claiming Tozo (i.e. will that be cause to revoke their permits), and whether a Tozo benefit can count toward their income?  We will still really have to wait to see what the State Secretary of Justice and Security (the deputy minister who sets policy for the IND) determines.  In the meantime there is only the odd and unclear statement that a municipality “does not have to report” a Tozo claim to the IND. Which municipalities will report it, then, and which ones will not?

 

NO NEWS as of Friday evening, 10 April

Every day this week, I’ve been combing through all the published documents and transcripts from Parliament to see if this matter has yet come up in the form of a question submitted by an MP to the State Secretary of Security and Justice– nothing yet. There was also a session of the parliamentary committee on Justice and Security, but that did not have to do with immigration policy, rather with a temporary law on legal procedures that the government proposed for (e.g.) things like digitization of legal procedures and extending court filing deadlines.

The IND website, for its part, does not yet address this question in its Corona FAQ : as I said before, the IND does not itself set policy, but at the same time, the State Secretary does often set policy based on recommendations of top IND officials, and it’s conceivable that the IND might already be working on a proposal for her and then it might provide an indication on the website that something is being worked out.

Friday evening, 3 April (no real news)

There has not yet been an update published to the Vreemdelingencirculaire (the policy handbook that the government sets for the IND) by the State Secretary (i.e. deputy minister) of Justice and Security clarifying whether claiming the Tozo can cause your residence permit to be revoked, and/or whether the income you get from the Tozo can be counted as business income for purposes of a renewal application.

A lot of details of what the Tozo will say (which — again — has not yet actually been enacted) are still being hammered out in the parliamentary committee on Social Affairs and Employment Opportunity, where members of parliament are already asking the responsible minister in that area (Wouter Koolmees) critical questions about why the government is planning to exclude certain classes of ZZPers from eligibility for the benefit.

Don’t blame them for not already asking about the plight of ZZPers who are non-EU citizens holding non-permanent residence permits just yet, because this subject doesn’t fall under the responsibility of that particular minister.

[Bear with me here, because it’s a bit confusing– in theory, most ZZPers holding residence permits, even non-permanent residence permits, will be eligible to get the benefit. The criterion “treated as equivalent to a Dutch citizen” or “equaled to a Dutch citizen”, which you may have already heard would apply, does actually mean in the context of Dutch welfare law almost all holders of valid residence permits, even non-permanent residence permits. So you would not be denied by your municipality at the outset. However, what we are waiting to find out is whether this would then be cause for the IND to revoke your residence permit when your municipality reports to the IND that you claimed this benefit.]

It will have to be members of the parliamentary committee on Justice and Security, and some of them are definitely aware of this problem, that will ask the State Secretary of Justice and Security (Ankie Broekers-Knol) when she will set policy telling the IND not to revoke residence permits for claiming this benefit and/or that the IND has to count Tozo money toward business income.

 

PAST UPDATES:

27 March

The two most important things to know (also in response to many of the questions and responses I have received this week):

• The Tozo (Tijdelijke overbruggingsregeling zelfstandig ondernemers), as the regulation for coronavirus support for ZZPers will be called, has not yet actually been enacted as a regulation. So nothing is set in stone yet– the only new information we have so far (as of the end of the afternoon) is the government’s more specific announcements as to what the details of the Tozo will be, which still do not address the issues for immigrants that I outlined in my original post (below).
• There is no rush to apply! When the Tozo is enacted, anyone who applies anytime before 31 May 2020 will get the full benefit (if they qualify) retroactively as of 1 March. Yes, there is the possibility that ZZPers who are in immediate need can already apply to their municipality, and the municipality will grant them an advance on the benefit, but if you are a residence permit holder for a non-temporary purpose (verblijfsvergunning regulier voor bepaalde tijd), do not rush to do this until the issues below are addressed. The expectation is that these issues are one of the things that will be worked out between the responsible minister and the responsible committees in parliament (whose job it is to provide the government with criticism and suggestions) in their sessions next week.

ORIGINAL POSTING: 

23 March

My law firm has been getting many phone calls and emails from self-employed non-EU citizens who are wondering whether they qualify for the special financial support that the Dutch government announced last week for freelancers (or so-called self-employed persons without employees, “ZZPers”), or whether they can receive this benefit without putting their immigration status in danger.

This answer is for non-EU citizens who have residence permits for the specific purpose of working in self-employment (look at the back of your residence permit, which is always the most important part: it would say “Arbeid als zelfstandige”), or non-EU citizens who have residence permits for the specific purpose of staying with a family member who has the aforementioned type of residence permit.

(If you are American, you might call your residence permit for self-employment a “DAFT” residence permit, since it was granted on the basis of the Dutch-American Friendship Treaty; if you are Japanese, you might have this type of residence permit granted on the basis of the Netherlands-Japan Trade Treaty; and if you are an artist, you might call this an “artist visa”. In all of these cases, it is still essentially the same type of residence permit and will say “Arbeid als zelfstandige” on the back.)

The only safe answer, for the time being, is that it could be considered to be a violation of the requirement of Dutch immigration law that you are obliged at all times, as a non-EU citizen immigrant with a conditional right of stay (i.e. any type of residence permit that is not a permanent residence permit) in the Netherlands, to have sufficient, independently earned financial means to support yourself and your family without making use of public assistance (NOTE!! it cannot be repeated enough that non-EU citizens are ALWAYS allowed to claim unemployment insurance [WW], if they qualify for it, and healthcare, rent and childcare supplements [zorgtoeslag, huurtoeslag, kinderopvangtoeslag], as these are not considered to be need-based, non-contributory benefits.)  The type of public assistance that is usually not allowed, and can be considered a sign that you no longer have enough independent means to support yourself, is need-based, non-contributory benefits (i.e. you are having trouble feeding yourself and your family with the money you are earning, so you need to ask your municipality for assistance). The coronavirus support measures are being implemented in the context of the Bbz or Besluit bijstandsverlening zelfstandigen, which like the Participatiewet , is considered to be a need-based, non-contributory benefit.

The coronavirus support measures are indeed due to special circumstances that affect everybody, but please wait before claiming this benefit. We will only know for sure whether you can claim it once the State Secretary of Justice and Security, the member of government who is the political head of the IND, has established policy guidelines in the Vreemdelingencirculaire, the immigration policy handbook — last week, I made a posting on Twitter asking the IND when the State Secretary would be establishing this policy. Note that the IND itself, which is only an apparatus of civil servants whose job it is to carry out the government’s immigration policies, will not itself be able to independently decide or determine whether claiming coronavirus support is allowed. There is no one there who you can call on the phone at the IND who has the authority to be able to tell you this. Note, as well, that you should not necessarily trust anyone at your municipality to know the answer to this either: civil servants there may err on the side of encouraging you to apply for the support, without fully understanding what the immigration law consequences are. 

What I personally believe that the policy should determine is the following:

• Claiming the support will not be ipso facto seen as a sign of having insufficient financial means
• And, more importantly, for holders of residence permits for self-employment who have an income requirement,* i.e. of always having an average monthly profit from business of at least €1250.12 (if you are single) or €1785.89 (if you have a dependent partner, although your partner’s income can also count toward this), I think it would be the decent thing to do to establish a policy saying that the coronavirus support can be considered to count toward this income requirement, despite not being an independently earned source of income.

(* Note that if your residence permit is based on the DAFT or the Netherlands-Japan Trade Treaty, you do not have an income requirement as such, only an obligation to maintain €4500.00 of equity in your business and for your business to actually have a reasonable amount of financial activity to show in terms of revenues and expenses for business development.)

But again, for the time being, please wait. I will post updates at this location as they become available.

 

— Jeremy Bierbach, attorney at Franssen Advocaten specialized in Dutch immigration law