Antecedents Certificate: How important is it actually?

_{By Leonie Haenen and Romy Hol}

If you apply for a regular residence permit for the Netherlands, the Dutch government wants to verify whether you pose a danger to the public order and security in the Netherlands. To check this, it is mandatory to fill in an antecedents certificate with every application for a regular residence permit.

What is the antecedents certificate?

An antecedents certificate is a statement in which you indicate whether you have committed a criminal offense in the past, or are currently being prosecuted for committing a criminal offense. This includes crimes committed in the Netherlands or criminal offenses abroad. The antecedents certificate must be completed by any person twelve years of age or older.

What should be filled in on the antecedents certificate?

On the antecedents certificate, information is asked about criminal offenses qualified as ‘misdrijven’, committed in the Netherlands. ‘Misdrijven’ are criminal offenses that are of a more serious nature, opposed to ‘overtredingen’. The difference between ‘overtredingen’ and ‘misdrijven’ is to an extent comparable to the difference between ‘misdemeanors’ (or ‘contraventions’) and ‘felonies’, but not always. ‘Misdrijven’ can be found in the Second Book of the Dutch Penal Code, but also in special laws such as the Road Traffic Act, the Opium Act and the Economic Offenses Act. Examples of ‘misdrijven’ under Dutch law are assault, theft, criminal threats, vandalism or driving under the influence of alcohol or drugs.

In the antecedents certificate, questions are also asked about criminal offenses committed abroad. This refers to both ‘overtredingen’ and ‘misdrijven’. It is not always clear whether a criminal offense committed abroad qualifies as an ‘overtreding’ or a ‘misdrijf’ under Dutch law. Therefore, every criminal offense must be listed on the antecedents certificate. The Dutch Immigration and Naturalization Service (IND) will use the information provided with the antecedents certificate to assess whether under Dutch law this is an ‘overtreding’ or a ‘misdrijf’ and whether this has consequences for your application. It can be useful to anticipate this assessment by enclosing an expert analysis of the qualification of the crime under Dutch law. For example, the analysis can explain that a foreign conviction for attempted assault (not attempted aggravated assault) does not constitute a crime under Dutch law, and therefore cannot lead to a rejection. We can draft this analysis for you. When necessary, we will consult with a criminal law expert within our network.

Consequences for application or residence status

If the IND concludes that the criminal offense on your antecedents certificate qualifies as an ‘overtreding’, this will have no consequences for your application. If it turns out that it concerns an offense that qualifies as a ‘misdrijf’ under Dutch law, and a sanction has been or will be imposed for this, this may result in the rejection of your application. This refers to a sentence imposed by the criminal court, or a penalty order imposed by the public prosecutor.

If you file an application for a regular residence permit, such as family reunification or a residence permit for study or work-related purposes, any sanction for an offense that qualifies as a ‘misdrijf’ under Dutch law may result in a rejection of your application. However, this decision must be proportionate, and there must always be an individual balancing of interests. With regard to most types of crimes, the IND can no longer reject the application after a certain period of time, specified in written policy. The duration of this period depends on the type of crime.  

If you are applying for a permanent residence permit, different rules apply. Your application may be rejected if you have been irrevocably convicted and a sentence has been imposed (imprisonment, community service or placement in a forensic psychiatric center) for a crime for which a prison sentence of at least three years can be imposed under Dutch law.

Extension/revocation

If you have a residence permit and you commit an offense for which a sentence is imposed by the criminal court, or a penalty order by the public prosecutor, this may be a reason to revoke your residence permit or reject your application for an extension. The level of the sentence imposed is measured against the length of lawful residence: the longer you are lawfully in the Netherlands, the higher the sentence imposed must be to reject your application for an extension or to revoke your residence permit. This is called the ‘sliding scale’. The threshold for rejecting extension or revoking a residence permit is reached sooner in case of crimes that can be sanctioned with a penalty of more than six years.

In this assessment too, the IND must weigh the general interest of protecting public order against individual interests, including the right to respect for private and family life as referred to in Article 8 ECHR.

EU citizens and Turkish nationals

Different rules apply to (family members of) EU citizens and Turkish nationals who derive the right of residence from Decision 1/80. We can advise you about this.

Filling in the antecedents certificate incorrectly

It is very important that the correct information is filled in on the antecedents certificate. If you have answered that you never have committed a criminal offense but later it turns out that you actually did, this can be seen as providing incorrect information or withholding information. If this information would have led to the rejection of your original application, this may result in revoking your residence permit.

Deliberately filling out the antecedents certificate incorrectly is also a criminal offense: forgery. This is laid down in Article 225 of the Dutch Penal Code. Violation of this article can be punished by a fine and in exceptional cases, imprisonment.

Consequences for obtaining Dutch citizenship

If you want to obtain Dutch citizenship, there are other rules that determine the consequences of criminal antecedents. If you file an application for naturalization or an option request, you should not fill in the antecedents certificate but the ‘declaration of residence and conduct’. This declaration must be completed by any person 16 years of age or older and covers the past five years. If it has been less than five years since you were sentenced to a prison sentence, community service, a monetary penalty, or an additional punishment, or if it has been less than five years since the enforcement of any of these penalties was completed, this may result in the rejection of your application. Your application may also be rejected if, at the time of applying, you are being prosecuted or have a pending probationary period.

It is therefore recommendable to seek advice during an early stage of the criminal prosecution, about the possible consequences of a conviction for your naturalization request. Your criminal lawyer can then take this into account in their defense plea. 

If it turns out that you have provided incorrect information (in the past), this can lead to revocation of your Dutch nationality.

Advice and guidance

If you answer “yes” to any of the questions in the antecedents certificate, it is advisable to explain this in a separate letter. You should then also include all relevant documents, such as the criminal judgment and documents confirming the execution of the sentence. We are pleased to provide assistance in the drafting of such explanatory letter and selecting the relevant documents.

Do you have questions regarding the antecedents certificate, the declaration of residence and conduct or concerning the possible consequences of antecedents for your application, right of residence or Dutch citizenship?
Please contact Lotte van Diepen or Nikki Vreede for advice and guidance.