[NOTE! OUT OF DATE, DEAL LIKELY] Understanding the Dutch policy on British citizens after a no-deal Brexit

9 Apr, 2019 | EU Law, Immigration Law, News

UPDATE (28 January 2020): 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 enter into force on 1 February. Therefore, the unilateral policy of the Dutch government described below, including the temporary residence permits that have already been issued that would have become effective in the event of a no-deal Brexit, will not need to enter into force: instead, the provisions of the Withdrawal Agreement providing for rights of residence of British citizens who established residence in an EU member state before the end 2020 will enter into force. These, in turn, will work by analogy to the existing rules that apply to EU citizens’ rights of residence, so the section below “Understanding the rights you currently have as an EU citizen” is still relevant and useful.

by Dr. Jeremy B. Bierbach

Note: this summary of your rights and of the Dutch government policy on British citizens after a no-deal Brexit is my best attempt at rendering a complex subject simple. I will not accept any liability for any negative consequences you may suffer from relying on this blog entry, as every individual’s case is unique and as a Dutch attorney, I can only accept liability for cases in which I have been able to analyze your personal case in the context of an attorney-client relationship.

To skip to the sections below:

What has the Dutch government promised British citizens who already live in the Netherlands?

If you are a British citizen (or the non-EU citizen family member of one) who is living in the Netherlands and registered at a Dutch address, then if all is well, you have already received a notification at your home address concerning the unilateral policy that the Dutch government has instituted for British citizens who already live in the Netherlands at the moment of a “no-deal Brexit” (i.e. the UK crashing out of the EU a certain fixed length of time after it issued its Article 50 notification that it was withdrawing from the European Union). The letter looks like this:

… and it includes a brief explanation in English. In the event of a no-deal Brexit (which was originally going to be on 29 March 2019 if no agreement was reached, and now has been pushed out to 12 April 2019, and is likely to be pushed out once more– note that the Dutch government has already clarified in its policy that for “29 March 2019”, you should now read “the date of withdrawal of the UK”), this letter will be your residence permit for a transitional period lasting until 1 July 2020. In combination with your passport, it will be proof of your right to be in the Netherlands.

So far, so good.

However, it seems to be unclear to a number of Brits who have contacted me what their rights will be after this permit expires on 1 July 2020. What will the procedure look like for applying for a residence permit during that transitional period, and more importantly, what will the conditions be for getting that residence permit?

As to the procedure: the message from the IND (the immigration authority of the Dutch government), for the time being, is “don’t call us, we’ll call you”. You will be invited to apply for a residence permit sometime during the transitional period.

As to the conditions? Let’s start with an easy case. If you already have an EU citizen permanent residence document (which has the words “Duurzaam verblijf burgers van de Unie” on the back), then you will be invited to apply for a new permanent residence permit, and you will not be charged for it. Nor will you, I expect, have to prove you satisfy any additional conditions in order to get this permanent residence permit.

Because: the fact that you were already issued a permanent residence document means that the IND already recognized that you have an unconditional right of stay in the Netherlands. “Unconditional” means exactly that. It means that you no longer have to prove that you are working or that you have sufficient financial means to take care of yourself and your family. That also means, as a corollary, that you have the same rights to student financing and need-based benefits (aka the dole) that Dutch nationals have, and you cannot lose your right to stay for making use of those facilities.

The only “condition” that holders of a permanent resident status have to satisfy to a greater or lesser degree is: continue to live in the Netherlands. That’s why calling it “permanent” is something of a misnomer—you can lose it if you move away and stay away for a certain period of time. As to the EU permanent residence status, I am still fighting a court case against the Dutch state on behalf of a client of mine to determine whether the fact that you can lose the status after “two years’ absence” from the Netherlands means just that—and that visiting every once in a while is enough to keep it—or if it means actually having to come back to live in the Netherlands.

And if you don’t already have an EU permanent residence document? Then the Dutch government’s policy clearly states that the conditions for you to get a non-permanent residence permit or a permanent residence permit will be the same conditions that currently apply to your right of stay as an EU citizen, on the basis of the EU legislation called Directive 2004/38.

(What? There are conditions that apply to my right of stay as an EU citizen?)

That’s right. So to understand what the conditions will be for you to get a residence permit in the no-deal future, it’s important to understand what the conditions were that already applied to you as an EU citizen.

Understanding your rights of residence in the Netherlands as an EU citizen

Don't it always seem to go
That you don't know what you've got
Till it's gone
— Joni Mitchell, “Big Yellow Taxi”

This seems to be what comes as the biggest surprise to a lot of Brits—that your right to live in the Netherlands (or any other EU country, for that matter) was never unconditional, at least not for the first few years after you arrived. (For that matter, this news might come as a surprise to many of your compatriots who voted Leave, who had no idea that EU law already imposed conditions on EU citizens coming to the UK and did not just allow them to claim benefits from Day 1.)

It certainly felt like it was unconditional, because you never had to apply for a permit to stay (at least not since the early 2000s, when that requirement was abolished for EU citizens), nor did anyone ever stop you and challenge you to provide proof of what you were doing in the Netherlands (at least not if you were just here on your own—if you ever helped a family member who was not an EU citizen apply for confirmation of their right to be here, on the other hand, then as part of their IND procedure, you most definitely were asked for proof of what you were doing here).

You just rocked up with your British passport, went to city hall, registered at an address and were issued a BSN (* Dutch tax ID, which is not itself proof of any rights, just an identifying number), and that was that—you worked or did whatever else your thing was. But unbeknownst to you, you probably were satisfying the conditions of EU law for being allowed to stay in the Netherlands for longer than three months (Art. 7 of Directive 2004/38, for the connoisseurs). So what are the ways you satisfy those conditions?

Working (or being the family member of a worker)

For most non-EU citizens, getting a residence permit for the purpose of work (i.e. as labor migrants) means that they (or their employer) have to jump pretty high to prove that their presence is really essential to the Dutch economy. Nowadays, that is almost only assumed in the case that their employer is willing to pay them (as a rule) at least €4500.00 a month in gross salary for a job that can also be considered to be reasonably high-skilled. There still also exists the procedure—called the GVVA permit—for the Dutch employer to prove they looked for a qualified EU citizen and couldn’t find one, but this procedure has a high rejection rate and is really only a vestige of what existed prior to the aforementioned “highly skilled migrant” procedure. Don’t worry, you’re not going to be subject to any of these requirements.

EU citizens, on the other hand, can decide for themselves what kind of work they want to do as wage-paid employees (or “workers” in the jargon of EU law), for the employer or employers of their choice, and it doesn’t really matter how much they get paid (as long as they get paid something), nor does it matter how high-skilled their work is.

All that matters, to quote a foundational 1982 ruling from the European Court of Justice on the matter (which, incidentally, was initiated by a British woman suing the Dutch state for it telling her that she was not engaged in the “right” kind of employment), is that to be considered a “worker” entitled to a right to stay, an EU citizen has to be pursuing “effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary”. (What?)

The rule of thumb that the IND uses to define this is to consider any EU citizen who is working either 40% of the normal working hours, OR earning 60% of the income norm that is normal for their household size, to be engaged in effective and genuine activities, ergo legally resident as a worker. It doesn’t matter how good your contract is, as long as it’s (ideally) over the table (which means you have the salary slips to prove it) and you can show you are actually working an average of 64 hours a month (that’s it! in fact, even an internship qualifies as “work” if you put in the requisite number of hours and receive some amount of compensation for it, however small), or otherwise earning (in any case, to be on the safe side, if you have dependents) €950.00 gross monthly or (if you’re single) €750.00 gross monthly.

For you to be legally resident in the Netherlands as a working EU citizen, it makes no difference whether you are the CEO of Shell or you are getting paid through an uitzendbureau, picking up glasses in a pub for 16 hours a week.

You are also considered to be legally resident as a “worker” if you are just a jobseeker, provided that you have decent prospects for actually finding work before too long. If you receive unemployment insurance (a WW-uitkering) from UWV, that is automatically considered to be proof of being a jobseeker (since to keep it, you have to provide regular proof that you have applied for jobs). (Never fear the WW-uitkering! It’s not a need-based benefit, in other words, it’s not considered to be the “wrong” form of benefits. For that matter, zorgtoeslag, huurtoeslag and kinderbijslag are also all perfectly acceptable forms of benefits to claim for anybody living in the Netherlands.)

Working in self-employment (a/k/a as a “ZZPer”, or as the owner of a company with employees)? Since you don’t get monthly salary slips with the number of hours worked (unless you’re on your company’s payroll as its director), it’s harder to prove that you worked 40% of the normal working hours (although I do advise certain kinds of self-employed clients of mine, artists in particular, who put in long hours of work for very irregular payoffs, to keep logs of hours worked on various projects). So for you, the income norm cited above (in the form of the gross profit you earn from your business) will be more relevant—it’s a good idea to have a Dutch bookkeeper doing your accounting for you, so that you can submit an annual report for your business as proof of what your gross profit was. (Your annual income tax filings as an entrepreneur also count as proof of what your gross profit was for a given year.)

Note: it’s important to remember that in establishing whether you are legally resident through work, it’s really not about the money. It’s about proving that you are making a decent go of it on the labor market or as an entrepreneur.

By the way: if you are a British or non-EU citizen who is living in the Netherlands as the family member (spouse/partner, [step]child under 21 or [step]child over 21 who is dependent or studying full-time, dependent [step]parent or [step]grandparent, or other dependent family member) of a British or EU citizen who lives in the Netherlands as a worker, you do not have to submit your own proof of working or financial resources– you only have to submit the proof that that one family member is a worker.

However, perhaps somewhat confusingly, if you are a British citizen living in the Netherlands as the family member of a Dutch citizen who is working and supporting you, and you do not work yourself, you fall under the category “economically inactive EU citizen” that is described in the section below, and you have to submit proof of your actual financial resources as a family.

Doing whatever else your thing is

All EU citizens who can’t satisfy the above norms of proving that they are working enough in the Netherlands are called “economically inactive EU citizens”, of which we can distinguish at least four archetypes (below). In this case, it actually is about the money—you can be asked to prove that you have enough financial means to get by without having to make use of need-based benefits (aka a bijstandsuitkering), either in the form of a regular source of income from outside the Netherlands, or savings. However, at the same time, EU law says that there is no fixed amount that the Dutch government can demand you have to have—your personal circumstances, lifestyle, and monthly expenses have to be taken into account. The one additional piece of proof that is required of the economically inactive, that working EU citizens don’t have to provide, is proof of a comprehensive health insurance policy that covers them in the Netherlands. For most Brits, a EHIC (European Health Insurance Card) from the NHS is enough.

Students who are enrolled full-time at a Dutch educational institution are a specially privileged form of economically inactive EU citizens—they do not necessarily even have to provide actual proof that they have sufficient means (although the IND does sometimes try to get away with making them think they do), as long as they can prove their full-time enrollment and simply state that they have sufficient means.

EU citizens who are pensioners living in the Netherlands can usually prove with documents that they are receiving a regular monthly payout from their home member state that is enough to support them. For that matter, “frontier workers” (who are working in another EU country, but living in the Netherlands) are also economically inactive EU citizens, as far as the Netherlands is concerned, who can prove that they have regular means from their job.

(For that matter, as described in the last paragraph of the last section: if you are a British citizen but are living here as the non-working family member of a Dutch citizen who is working, you can use your Dutch family member’s proof of regular income as proof of your resources as an economically inactive EU citizen.)

It’s only if you have no regular source of income from anywhere and are just enjoying life in the Netherlands (in other words, if you are what EU law scholars semi-jokingly call a player) that the most demanding standards apply to you: to be safe, you would have to show that you have unconditional access to at least €10,000.00 in savings at any given time (and if that money starts to run out, it’d be a good idea to look for at least part-time work to qualify as a “worker”.)

Nevertheless, I’ve had some success in proving to the IND that an EU citizen and her partner were legally residing as economically inactive citizens based on their personal circumstances, even though they had no savings and were living at far below what is considered to be the minimum standard of living: it just so happened that they were artists, living for a year off of rice and beans and cigarettes and sleeping on mattresses on the floor in an anti-kraak, and I was able to submit all of their bank statements for a year showing all the money that was coming in—usually contributions from a parent in their home country, and never a single bijstandsuitkering—balanced more or less perfectly by all the money that was going out.

One common question I get from Brits and other EU citizens is whether the fact that they own property in the Netherlands means that they have to be allowed to stay. Not in and of itself: you still have to qualify as either a worker or a self-supporting economically inactive EU citizen. However, if you own your own home outright, meaning your living expenses are very low, then that is a circumstance that has to be taken into consideration in any evaluation whether, as an economically inactive EU citizen, you have sufficient resources to support yourself and your family without having to make use of need-based benefits. In any case, the main Dutch law on need-based benefits (the Participatiewet) provides that you would have to re-mortgage your home in order to cash out most of your equity and spend it before you would be granted benefits.

The important thing, if you are an economically inactive EU citizen with no regular source of resources, is to be able to provide some kind of proof of how much money you had going in and out; according to the current case law of Dutch immigration courts, it’s generally not enough merely to say that you simply did not receive need-based benefits if you cannot provide any positive proof of what you were actually living off of. As with so many areas of life in the Netherlands nowadays, it’s people who live a largely cash-based existence, with no records on their bank statements, who will have a particularly tough time proving their legal position. It has been suggested for people living a largely cash-based existence that they keep a household ledger book to keep track of income and outlays.

So in the post-no-deal-Brexit world, if you have not yet been here for 5 years, expect to be able to have to prove that you are either working, or self-supporting (or are the family member of a working or self-supporting British or EU citizen), according to the criteria above, to apply for your non-permanent residence permit.

Permanent residence status

Any EU citizen who satisfies the conditions above (of either working, or being economically inactive, but self-supporting) for 5 years is considered to automatically obtain a permanent resident status, and is entitled to an EU permanent resident document. Automatically? Yes, but to get the permanent resident document, you do have to furnish the proof that you satisfied the conditions for those five years. The application procedure for an EU permanent resident document is likely to be the first time that you ever had to prove that you satisfied any conditions.

Note! It does not have to be 5 years immediately preceding the present moment in time. If you can find any block of 5 years, starting around 2001, for which you can supply documentation that you satisfied any of the conditions of EU law for practically all of that block of time, that’ll do. So if you studied full-time at the University of Amsterdam from 2003 to 2004 (and you have proof of enrollment and health insurance from that time), then lived off of money your parents sent you in 2005 (and you have proof of your bank statements from that year), then found a job and worked in 2006 and 2007 (and you have your payslips and/or jaaropgaven for those years, or even your income tax assessments from the Belastingdienst), and you haven’t moved away since then, then you can provide enough proof to get an EU permanent resident card.

Once you have the permanent residence status, as stated above, you no longer have to satisfy any conditions of effective and genuine work or sufficient resources.

More or less the same conditions will apply for the permanent residence permit that post-no-deal-Brexit Brits will be able to apply for. Additionally, you will be able to accumulate your five required years from both your pre-Brexit stay as an EU citizen and your post-Brexit stay based on the transitional policy of the Dutch government.

Temporary mobility in other EU member states

Finally, one question I have been getting a lot, when I tell British citizens that while their rights in the Netherlands have been guaranteed, but they need to count on losing their rights of mobility to other EU member states, is whether this also means that they will lose their rights to temporarily travel to other EU member states for pleasure or for work.

Mobility” is a term of EU law jargon that typically applies to your right to take up residence and/or employment in another EU member state for a period longer than three months. But what of temporary mobility while you maintain your home base in the Netherlands?

As to your right to travel around the Schengen Area (the area covering most of the continental-European EU—and some non-EU countries—within which there are no systematic border checks): it has been announced that British citizens will be added to the list of nationalities (like Americans, Japanese, Argentinians, Singaporeans, etc.) whose holders are entitled to visit the Schengen Area (or circulate through parts of it where they don’t have a residence permit) without a visa for up to 90 days out of any given period of 180 days, provided they have sufficient means to take care of food and lodging for themselves and can answer, if asked, what the purpose of their visit is.

But what of your right to go to other EU member states (including non-Schengen states) for work-related purposes? Like a business meeting, or to install equipment on-site or provide training to a customer on behalf of your Dutch employer or business? Your right to do so, just as it is for any non-EU citizen who works for a Dutch employer or owns a Dutch business, is covered by the Treaty-guaranteed right of any EU-based business to provide services all over the EU, i.e. to send whomever it likes to service a contract with a customer elsewhere in the EU.

You should just be sure to bring clear documentation with you of the business-to-business relationship between your employer/business and the customer, as well as of the fact that you are covered by the Dutch social security system (salary slips OR the form “E101” or “A1/certificate of coverage”, obtainable from the SVB), in order to avoid any impression that you are being employed directly by the customer (which is a right you do not have as a non-EU citizen).

Note: this summary of your rights and of the Dutch government policy on British citizens after a no-deal Brexit is my best attempt at rendering a complex subject simple. I will not accept any liability for any negative consequences you may suffer from relying on this blog entry, as every individual’s case is unique and as a Dutch attorney, I can only accept liability for cases in which I have been able to analyze your personal case in the context of an attorney-client relationship.