A partner visa without living at the same address
In order to qualify for a residence permit to stay with a partner in the Netherlands, the IND requires a partner to be living at the same address as their sponsor. A BRP registration at a different address as a partner can cause a visa to not be approved. If a partner visa has previously been approved, but after a while, the two partners decide to not live at the same address, the visa can be withdrawn for this reason.
This article provides an overview of the grounds on which a visa may be rejected or withdrawn and the ways you can go about turning a negative decision into a positive one.
Main residence
The IND has different statutory grounds on which they can refuse or revoke a visa. One of the common rejection grounds is that a partner is not registered at the same address as the sponsor. This rejection ground is laid down in article 18, sub 1(a) of the Foreign Nationals Act (‘Vreemdelingenwet’). This is what the IND refers to as having your ‘main residence’ (‘Hoofdverblijf’) at the same address as the sponsoring partner. The IND believes this to be a condition for having a genuine and effective relationship.
However, the Council of State, the Supreme Administrative Court in the Netherlands, has recently delivered a ruling stating that being registered on the same address is not actually a requirement for a relationship to be considered genuine and effective. The Judgment confirmed that imposing the main residence requirement on a partner of a sponsor is a violation of Directive 2003/86/EC of 22 September 2003 on the right to family reunification. A partner may therefore be registered at a different address than their sponsor. This also means that the rules of main residence do not apply to partners. Unlike the sponsor, a partner may stay out of the Netherlands for over 6 months in a year and for more than 4 months, three years in a row. For more information on the main residence, you can read Mynta Law’ article on main residence here.
Genuine relationship
As the main residence is now no longer a requirement, the IND can no longer withdraw a permit on this ground. Therefore, the IND is left with the rejection ground of a partner not (or no longer) fulfilling the requirements of a partner visa (article 18, sub 1(f) of the Foreign Nationals Act). A deregistration from the address of the sponsor with the BRP can lead the IND to ask questions about the genuine nature of your relationship. To reject a visa on the basis of someone not fulfilling the requirements of a visa, i.e. being in a genuine relationship, is still very much a valid ground of refusal for the IND. However, as stated earlier, the living-together requirement no longer is necessary for a relationship to be regarded as genuine. It is therefore important that if partners wish to live at separate addresses, that they are still able to prove the genuine nature of their relationship.
What now?
To say that not living at the same address will not cause the rejection or withdrawal is unfortunately still wishful thinking. The IND is still of the opinion that partners should be living at the same address and will still see a deregistration as a sign of a broken relationship. It is therefore important to make the IND aware of this judgment and explicitly state you wish to rely on the aforementioned ruling of the Council of State.
Mynta Law has successfully applied for residence permits for our clients who are registered at separate addresses. Even more so, Mynta Law successfully appealed intentions to withdraw residence permits on the basis of alleged moved main residence. If you would like assistance with a residence application, or require advice about your own situation, Charley Nieuwesteeg LL.M. can advise you. Please feel free to send her an e-mail today.
