Council of State rules: no Dutch citizenship with a Chavez residence 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.