Staying in the Netherlands after residence as a privileged person

_{By Sofia Helbing and Thomas van Houwelingen-Boer}

Sunja has Rwandan nationality and has been working in the Netherlands for seven years, as a judge at an international tribunal. Because of her job, she holds an ‘MFA card’ issued by the Ministry of Foreign Affairs. The MFA card is proof of her privileged status and is used as her identity card and proof of her right of residence in the Netherlands.

After 5 years of living in the Netherlands, Sunja married Isac. Isac is a Dutch national and Sunja met him shortly after arriving in the Netherlands. In 2020, their son Noa was born. Like Isac, Noa carries the Dutch nationality because of the marriage of his parents.

Sunja no longer likes her job at the tribunal and would like to quit. Because her right to stay in the Netherlands is linked to her job at the tribunal, she needs to find another way to be able to stay in the Netherlands. Her goal is to eventually apply for Dutch citizenship.

Permanent residence

Sunja has heard that as a privileged person, she would be eligible for a permanent residence permit after 10 years of legal residence in the Netherlands. This is based on Article 3.93 of the Aliens Decree 2000. To qualify, Sunja must prove she has sufficient means of income and obtain the integration diploma in the Netherlands. Based on this right of residence, she would be able to obtain Dutch citizenship. Because Sunja does not yet have 10 years of legal residence in the Netherlands, she decides to consult an attorney to learn more about her options.

Chavez-Vilchez

Sunja may be able to file an application with the Immigration and Naturalization Service (IND) for a residence document based on Article 9 of the Aliens Act, as the caring parent of a Dutch child. This right of residence is based on a ruling by the Court of Justice of the European Union (CJEU), known as Chavez-Vilchez. A parent originating from outside the EU who takes care of their Dutch child who is dependent on the parent, may be eligible for this right of residence. The reasoning behind this right of residence is that the child would be forced to leave the EU should the parent not obtain a right of residence in the Netherlands. Together with the absence of the parent, this is considered contrary to the rights of the child. For this application, Sunja must prove that she has legal custody of Noa, and that she actually takes care of him.

With her goal of becoming a Dutch national in mind, Sunja is a bit hesitant to apply for this right of residence. In order to be eligible for Dutch citizenship, Sunja must have a non-temporary right of residence in the Netherlands. Recently the CJEU ruled that the Chavez-Vilchez right of residence can be qualified as a non-temporary right of residence. Previously, it was regarded as a temporary right of residence, and therefore it was impossible to apply for citizenship based on this right of residence. Based on the CJEU ruling, people with a Chavez-Vilchez right of residence will now qualify for a permanent residence permit as EU long-term resident. However, it is still unclear what the exact consequences of the ruling will be with regard to obtaining Dutch citizenship. More information about this is expected within the next few months. For more information, you may want to read the following news item: Perspective on permanent residence for ‘Chavez parents’.

Family reunification

Sunja knows that she could also apply for a residence permit as spouse of a Dutch national (family reunification). This right of residence is considered non-temporary, and therefore she would be able to apply for Dutch citizenship based on this permit. For this application, she must submit a copy of her marriage certificate and proof of sufficient means of income. In addition, she must pass the civic integration exam abroad, in Rwanda. Once the application is approved, she will need to collect a provisional residence permit (mvv) from the Dutch embassy in Rwanda. With the mvv, she will be able to travel back to the Netherlands. However, Sunja does not want to go to Rwanda.

Sunja considers applying for the Chavez-Vilchez permit first. When this permit is issued, she can apply for family reunification. Because she would then be in possession of a residence permit, instead of the special MFA card she holds now, she will be exempted from the mvv requirement and the integration exam abroad.

Highly skilled migrant

Another option for Sunja is to find a new job with an employer that has recognized sponsor status with the IND. She would then be able to obtain a residence permit as a highly skilled migrant. To qualify for this residence permit, Sunja would need to receive a certain minimum salary. In addition, she would need to collect an mvv in Rwanda. Based on this permit, Sunja will only be allowed to work for this employer as a highly skilled migrant. Based on the Chavez-Vilchez permit or the family reunification permit, she would be free to work anywhere.

Sunja decides to file an application for a Chavez-Vilchez right of residence, and eventually change this to a residence permit as spouse of a Dutch national. Because of her work as a judge at the international tribunal, Sunja can apply for a permanent residence permit after 10 years of legal residence in the Netherlands.

Are you a privileged person and looking for another right of residence in the Netherlands? Please contact attorney Thomas van Houwelingen-Boer and paralegal Sofia Helbing for further advice.