The case of K.R., which had previously been referred to the Court of Justice of the European Union (CJEU) by the highest Dutch immigration court, the Council of State (read the history of this case here) was resolved on 8 April 2022, when K.R., a client of attorney Jeremy Bierbach, accepted the settlement proposal offered by the Dutch government.
In the CJEU’s judgment of 20 January 2022, Z.K., the Court had issued an interpretation of the Long-Term Resident Directive (2003/109), a piece of EU legislation providing for a right of permanent residence of non-EU citizens. Where that Directive says that that right of residence can be lost ‘in the event of absence from the territory of the [EU] for a period of 12 consecutive months’, the Court ruled that it is not necessary to actually come back to reside in the EU before that period elapses: a visit of a few days is enough to maintain the status of long-term resident, and therefore the unconditional right of residence. This serves the interest of the long-term resident’s integration in the EU.
The Court went out of its way to rule that this was by analogy to a comparable provision of the Citizenship Directive (2004/38), the interpretation of which was the dispute that gave rise to K.R.: ‘Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.’
The Dutch government therefore drew the conclusion that K.R.’s reading of the Citizenship Directive was the correct one: despite the fact that she had no longer actually resided in the Netherlands for many more than two years, and in fact had her main place of residence in the United Kingdom, the fact that she frequently visited the Netherlands (never being physically absent for two years without interruption) was sufficient for her to maintain her right of permanent residence as an EU citizen.
As a result, the fact that she had maintained her right of permanent residence as an EU citizen also meant that as of the date that Brexit took effect (1 January 2021), K.R. was also entitled to a permanent residence permit as a British citizen, based on the Withdrawal Agreement of the UK from the EU.
The Dutch government reversed its revocation of K.R.’s permanent residence status as an EU citizen, granted her a permanent residence document as a British citizen, and awarded her compensation for her legal expenses. Because her interest was fully satisfied, K.R. withdrew her appeal at the Council of State, and the CJEU will also no longer rule separately on her claim.
Because Article 15(3) of the Withdrawal Agreement provides that a right of permanent residence for a British citizen in an EU member state will only be lost through absence from the host member state for a period exceeding five consecutive years, it is clear that the Dutch government is bound to adhere to the same interpretation of the term ‘absence’ as in Z.K. and K.R.
Any British citizen who obtained a right of permanent residence before or after Brexit can therefore maintain that right by simply visiting the Netherlands for a few days every less than five years.
If you have any questions, contact attorney Jeremy Bierbach.
