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Objecting to a rejection by the IND of an application for permanent residence

Sunil has been living and working in the Netherlands for 8 years when he applies for an EU residence permit for long-term residents in the summer of 2017. The IND rejects his application on the basis that it did not meet the funds requirement. According to the IND, his income is not sustainable because his employment contract on the day of the application was not valid for another year but only one year minus 3 days.

Three important conditions apply to a residence permit for permanent residence: The applicant must have lived in the Netherlands for at least 5 years with a residence permit for a non-temporary purpose, have passed the integration exam, and have sufficient income sustainably.

This case concerns the income requirement. The IND applies a strict policy: An employee meets the requirement if at least the minimum income is earned and the employment contract is valid for one year at the time of the application. If this is not the case, but the employment contract continues for another half year, the service looks at the income in the year preceding the application. In that year Sunil was without work for a while. After he had worked for 7 years as a scientific researcher at two universities, he received an unemployment allowance for 6 months and lived for several months of his savings before he found a job as a highly skilled migrant again. This is the reason the IND rejects his application. According to the IND, the sustainability of his income is not guaranteed.

On behalf of Sunil, I object to this restrictive application of the income requirement. The individual circumstances must be taken into account on the basis of the EU Long-term Resident Directive and the interpretation of the EU Court of Justice. Sunil is highly educated, has worked for 7 years as a highly skilled migrant and has never requested social welfare benefits (bijstand). We also believe that he will receive an extension of his contract in the coming months or find a new job.

This unfortunately does not happen and the IND rejects the objection. It is now a year after the filing of the original application and we are in court. Sunil can start work at an Indian restaurant on the condition he gets a residence permit; meanwhile he is starting up his own business. The judge states that Sunil's individual circumstances are not sufficiently considered and instructs the IND to do so in a new decision. Sunil and I are happy with the verdict but the IND decides again that he does not meet the funds requirement. This decision is a word-for-word copy of the first decision, with only 6 sentences added, rejecting his application. So we are going to appeal again.

Throughout the procedure, Sunil has several job interviews and he is also offered jobs. For those jobs however, he needs a residence permit, which he does not get because he does not have a job. He manages to start his own business and he eventually gets a residence permit as a start-up.

One day before the second court hearing, the IND employee calls to state that she will decide positively on his application. By issuing the start-up residence permit, IND assumes that Sunil will meet the funds requirement in the coming year and it therefore follows that his income is sustainable. This month, a year and 4 months after the submission of the original application, Sunil has finally received a residence permit for permanent residence.

Do you have problems with, or questions about, the income requirement? Please contact me.

Elles Besselsen

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