The highest court has ruled that on the basis of a European directive (2003/109) a residence permit for an indefinite period has to be issued even if the Dutch law has not been complied to.

A person who stays legally more than 5 consecutive years prior to his application, qualifies for a residence permit for an indefinite period. Temporary residency, for instance as an au pair or for seasonal work, or pending the decision on an application (formally limited right to residency) does not count. The Dutch law indicates that an application for a residence permit for an indefinite period will be refused, if, during the past five years, there has been temporary or limited residency. In that case it would mean starting the count again.

The highest judge in the Netherlands however, has ruled differently in an appeal case that has been set by Mr. Erik Scheers. With reference to the European directive 2003/109, it has been considered that after deducting a temporary or limited residency one can count on. The Dutch law is inapplicable to this extent.

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