[OUT OF DATE] Dutch Council of State asks EU Court to rule on right of permanent residence for a British citizen

13 Oct, 2021 | Brexit, EU Law, Immigration Law, News


NEWSFLASH (13 October 2021):

This morning, the Dutch Council of State made a preliminary reference to the Court of Justice of the European Union (CJEU) in Luxembourg, asking the following questions about the proper interpretation of art. 16(4) of the Citizenship Directive (Directive 2004/38):

1. Must article 16(4) of Directive 2004/38/EC … be interpreted in such a way that every presence in the host country, no matter how short, of a citizen of the Union with a right of permanent residence is sufficient to interrupt a period of absence from the host country of more than two consecutive years?

2. If the answer to the first question is negative: which factors should be taken into consideration in determining whether a presence of such a citizen of the Union in the host country interrupts a period of absence from the host country exceeding two consecutive years? Is the circumstance of any significance that the citizen of the Union in question has moved the centre of her interests to another member state?

The Council also ruled in its referral judgment that the fact that the plaintiff is British, and that the UK has withdrawn from the EU, causing her to lose her EU citizenship, does not mean that this legal question is moot. After all, if it is determined that as an EU citizen, the plaintiff did not lose her right of permanent residence due to absence from the Netherlands, she must be entitled to a permanent residence permit on the basis of the citizenship provisions of the Withdrawal Agreement of the UK from the EU.

Previous news (last updated 28 October 2019)

On 27 August 2019, the immigration sector of the District Court of Amsterdam rejected an appeal filed on behalf of a British plaintiff by her attorney, Jeremy Bierbach: the plaintiff is a 28-year-old British citizen who moved to the Netherlands with her parents at a very young age and grew up there. She has now filed a higher appeal against the district court’s decision at the highest administrative court of the Netherlands for immigration cases, the Council of State, and has insisted that that court should refer preliminary questions to the Court of Justice of the European Union on the proper interpretation of the applicable EU legislation.

EU legislation (Directive 2004/38) provides that any EU citizen living in a host member state automatically obtains a right of permanent residence after legally living there for five years, so while the plaintiff was still living at home, she applied for and got an EU permanent residence document (duurzaam verblijf) from the Dutch immigration authority (IND).

She then moved to the UK to go to university and get her PhD, and now has a position as a researcher at a British university. Her parents still live in the Netherlands, and she comes to visit them and her friends in the Netherlands quite frequently.

However, when the IND noticed that she had not been registered at a Dutch address for over two years, it moved in December 2018 to revoke her right of permanent residence in the Netherlands, citing the provision of the aforementioned EU legislation that says that the permanent residence status can be lost after two years of uninterrupted “absence” from a host member state.

The plaintiff disputed the IND’s revocation in January 2019 by providing proof, in the form of plane and ferry tickets, that she has been anything but absent from the Netherlands for two years: she is quite frequently present there. At her court hearing she was able to answer the judges’ questions, concerning the circumstances of her move and her visits to the Netherlands, in fluent Dutch.

The District Court ruled that the term “absence” must also be understood to include “qualitative absence”, not just physical absence, and that the moment the plaintiff moved the “center of her interests” from the Netherlands to the UK marked the beginning of her two years of uninterrupted “absence”. After this period, the District Court ruled, she could be deemed to be no longer integrated in Dutch society and therefore to have lost her right of permanent residence as an EU citizen.

In her higher appeal at the Dutch Council of State (the highest administrative court for immigration cases), the plaintiff has disputed that point of view, arguing not only that the text of the Directive provides no support for such an interpretation of “absence” (and that the District Court incorrectly read the Dias decision of the EU Court), but that her right of permanent residence is precisely meant to preserve her integration in Dutch society. As a subsidiary argument, she has suggested that her right of permanent residence in the Netherlands, once acquired, is also meant to safeguard her rights of freedom of movement by allowing her to take advantage of work and study opportunities elsewhere in the EU without feeling like she has to completely move back to the Netherlands every less than two years.