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Litigation about the refusal to issue a visa to the unmarried partner of an EU citizen because they have not yet lived together

Andrea and Eli get to know each other in June 2017 through a dating site. Andrea is Bulgarian and lives and works in the Netherlands; Eli is Pakistani and lives in Dubai. They have daily contact via Whatsapp, telephone and Skype and they have been in Dubai together several times. After a long-distance relationship of 10 months, they want to live together in the Netherlands. Andrea has a good job in the Netherlands and does not wish to live in Pakistan or Dubai. Eli applies for a visa in May 2018 to travel to Andrea in the Netherlands. With the application, they include tickets and hotel reservations for Andrea’s trips to Dubai, a summary of their many Whatsapp and telephone conversations, and photos and statements about their relationship from family members and friends. The application is rejected on the basis that Andrea and Eli have not been living together for 6 months and therefore the IND does not consider their relationship to be sufficiently durable. How can that be?

EU citizens and their family members have the right to live and work in the Netherlands. Directive 2004/38/EC, the Citizens’ Rights Directive, stipulates that non-European spouses and registered partners of EU citizens have the right to come to the Netherlands if their EU spouse or registered partner works in the Netherlands or otherwise has sufficient means of subsistence. Because no distinction is made in the Netherlands between married and unmarried persons, the directive also applies in the Netherlands to unmarried partners of EU citizens. In that situation, there must be a properly established durable relationship.

The Citizens’ Rights Directive does not include a definition of when there is a durable relationship. The Immigration and Naturalisation Service of the Netherlands (IND) assumes that a relationship is durable if unmarried partners can prove that they have been living together for at least 6 months or if they have a child together. In practice, this means that the application for a visa for the unmarried partner of an EU citizen will be rejected if the couple has no child and has not lived together before. Also, unmarried partners of EU citizens that are already in the Netherlands and apply for a EU-residence document at the IND, are not allowed to work in the Netherlands during the 6-month decision period.

This practice is contrary to (European) law and justice. After all, a durable relationship can also exist in the situation of a long distance relationship or a LAT relationship (Living Apart Together) of at least 6 months, as long as the relationship is well substantiated with supporting documents.

In March 2019, the District Court of The Hague confirmed this definition of a durable relationship within the meaning of the EU law in the case of Andrea and Eli. About a year after their application and many visits from Andrea to Dubai, phone calls, and Whatsapp messages later, Eli is finally allowed to travel to the Netherlands to live with Andrea.

Are you an EU citizen and do you want to live with your unmarried partner in the Netherlands? Do you have problems or questions about the procedure for EU verification? Please contact me.

Elles Besselsen
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