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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The same sex spouse of an EU citizen is entitled to reside with his or her partner throughout the European Union. On 5 June 2018, the Court of Justice of the European Union replied to questions referred for preliminary rulings by the Romanian Constitutional Court.

Minors, who possess dual nationality and live outside the EU for a substantial amount of time, may lose their Dutch nationality automatically when their parents fail to renew their Dutch passports on time.

If you have EU or Swiss nationality, you do not need a residence permit or work permit to stay and work in the Netherlands. You are, however, excluded from receiving public funds like a social welfare benefit (unless you have EU long-term residency).

EU and Swiss nationals do not need to report with IND (Immigration and Naturalization Service). If you plan to stay in the Netherlands for more than 4 months, you are required by law to register in the civil registry (municipal database) of your Dutch home town.

Croats

Do you have Croatian nationality? You do not need a residence permit to stay in the Netherlands. As of 1 July 2018 Croats are free on the Dutch labour market. A work permit is no longer required.

If you stay in the Netherlands for more than 3 months you must be able to prove that you have health insurance and sufficient financial means. It is optional to apply for verification against EU Community Law. Your employer may request you to do this.

Family members of EU citizens and Swiss nationals 

Your family members with a non-EU nationality must apply for a residence permit if they want to join you in the Netherlands. In this case, verification against EU Community Law.

The following conditions apply:

• you have legal residence in the Netherlands
• you have sufficient financial means to support yourself and your family
• they have valid passports
• they do not represent a threat to public order

The same conditions apply to unmarried partners of EU citizens/Swiss, but there are a few additional requirements, for instance, you need to live together for at least 6 months or have a child together.

Permanent residence (unlimited stay)

If you wish to settle in the Netherlands on a permanent basis and you have the nationality of an EU Member State or Switzerland, you can apply for a permanent residence permit for EU citizens. Non-EU family members of EU citizens can apply as well.

You must meet the following conditions:

• you have had 5 years of uninterrupted legal stay the Netherlands
• you have a valid passport
• you are registered in the civil registry of your Dutch home town

Exceptions apply to retired persons, persons permanently unfit for work and cross-border employees.

Chavez-Vilchez

Read more about the residence rights in the EU of parents who are primary caregivers of Dutch children in our article here.

If you have any questions about the categories and specific requirements mentioned above, please contact Vera Kidjan, Elles Besselsen or Lotte van Diepen

The judgment of the European Court of Justice in the case Tjebbes and Others/ Minister for Foreign Affairs concerning automatic loss of Dutch citizenship has been published.

The Dutch Cabinet has decided to adopt the EU-proposal of an entry ban for non-essential travel. Entry into the Netherlands from a third country (outside the EU and Schengen member states and the UK) is banned up until 1 July 2020. 

Starting 1 July 2018, Croatian nationals will be free on the Dutch labor market.