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 EU Court of Justice has delivered an important ruling on the residence rights of parents without a residence permit who are primary caregivers of Dutch children on 10 May 2017. The verdict is named after one of the parents who had brought the case to the Court of Justice: Chavez Vilchez. 

Currently, family reunification in the Netherlands is only possible for members of the core family unit. The core family unit are the partners/spouses and children under 18. Adult children are not part of the core family unit. However, it is possible to bring your young adult child to the Netherlands in some cases.

Currently, family reunification in the Netherlands is only possible for members of the core family unit. The core family unit are the partners/spouses and children under 18. The (grand)parents of adults are not part of the core family unit. It is however still possible to bring your parent to the Netherlands in some cases.

Currently, holders of a Chavez permit do not qualify for permanent residence or Dutch citizenship. Such applications are rejected by default. Several regional courts and the Administrative Division of the Council of State, highest administrative court in the Netherlands, ruled that these rejections were lawful due to the temporary nature of the right of residence based on a Chavez permit.

Over a year ago the District Court of The Hague in Amsterdam ruled that naturalisation based on a Chavez-Vilchez residence permit is not possible due to the temporary nature of this residence right. Everaert Advocaten Immigration Lawyers filed an appeal against this ruling.

On 28 April 2021, the Council of State ruled in this appeal that the Chavez-Vilchez residence right can indeed be considered temporary within the meaning of the Dutch Citizenship Act and that, consequently, holders of a Chavez-Vilchez residence permit are unable to meet the conditions for obtaining Dutch citizenship.

According to the Council of State, the temporary nature of the Chavez residence right follows from the fact that it is derived from the European rights of the Dutch minor child and ceases to exist as soon as the child reaches the age of 18 or as soon as the child is no longer dependent on the care of the parent.

According to the Council of State, there is no question of discrimination compared to parents of children with a non-European nationality because the Chavez-Vilchez residence right only serves to protect the European rights of the Dutch child and is a derived and temporary right. The residence rights of third-country parents based on art. 8 ECHR however, are based on their own rights to the protection of family life.

The Council of State does not address the comparison with the derived residence right of parents of other European children.

Nor does the Council of State consider it necessary to await the preliminary ruling of the European Court of Justice. According to the Council of State, the question of whether the Chavez-Vilchez residence right is temporary within the meaning of the Aliens Act is not relevant for the assessment of whether it is temporary within the meaning of the Dutch Citizenship Act. The Council of State considers that immigration law and nationality law are separate.

This means that holders of a Chavez-Vilchez residence permit must first change their residence permit to a non-temporary one before they qualify for Dutch citizenship.

For more information about your options for changing your residence permit and whether you qualify for permanent residence or Dutch citizenship, please contact Elles Besselsen.

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.

Elles Besselsen was a speaker at this year's Loving Day, June 12^th. Together with Betty de Hart, she spoke about the legal hurdles Dutch women encounter when they want to bring their foreign partner to the Netherlands.

Family members of self-employed have the right to work as self-employed, themselves. The State Secretary of Justice and Security has amended the Aliens Regulations and the Aliens Circular accordingly.

Dutch citizens or holders of a Dutch residence permit for a non-temporary purpose of residence (except for study) may bring their foreign partner (whether married or unmarried) to the Netherlands.

On 24 January 2020 Hans Jager said a festive farewell to his 39 year practice as an immigration attorney. At this occasion he received the St. Andrew's medal of the City of Amsterdam by vice-mayor Rutger Groot Wassink.

For Dutch expats who wish to return to the Netherlands with family members requiring an entry clearance visa (MVV), the income requirement proves to be an obstacle.

As of March 1, 2022, registered partnerships from particular countries and regions are no longer recognized by the IND. If you have a certificate of registered partnership from one of these countries or regions, you are considered unmarried by the IND. This has, among other things, consequences for family reunification.

Today, 4 April 2019, the Dutch Government Gazette published an amendment on the Handbook for the Dutch Citizenship Act 2003.

The Council of State has announced a different method to assess whether the income of someone who is applying for family reunification is sufficient. The situation of flex workers is now taken into account as well.

On 10 May 2017, the EU Court of Justice delivered an important ruling on the residence rights of parents without a residence permit who take care of Dutch children. The verdict is named after one of the parents who brought the case to the Court of Justice: Chavez Vilchez.

The income amounts, considered by the Immigration and Naturalisation Service (IND) as adequate financial resources for applications for family reunification, are revised every 6 months. You will find the new standard means requirements as of 1 July 2020 below.

The income amounts, considered by the Immigration and Naturalisation Service (IND) as adequate financial resources for applications for family reunification, are revised every 6 months. You will find the new standard means requirements as of 1 July 2021 below.

The income amounts, considered by the Immigration and Naturalisation Service (IND) as adequate financial resources for applications for family reunification, are revised every 6 months. You will find the new standard means requirements as of 1 July 2022 below.

On April 28, 2020 the IND announced that embassies will resume issuing MVV's (entry clearance visas) to family members of Dutch citizens with an MVV approval for the purpose of stay ‘family’, if local circumstances allow.