Introduction

The EU long-term residence status grants a non-EU national a set of rights that are similar to those enjoyed by EU citizens. It also makes it easier for non-EU nationals to move to other EU countries. One of the conditions that a non-EU national must meet to qualify for an EU long-term residence permit (hereinafter: EU long term permit) is that the non-EU national must have had five years of legal residence in the host EU member state. Until recently, a one-day residence gap could already prevent the granting of the EU long term permit. Mynta Law successfully handled a case in which an EU long term permit was granted despite the residence gap, after invoking the principle of proportionality. This article details the facts and circumstances of the case.

The facts and circumstances of the case

Andrew (pseudonym) is an American citizen who held a residence permit for the purpose of ''work as an highly skilled migrant'' (hereinafter: highly skilled migrant permit). After five years of legal residence in the Netherlands, Andrew applied for an EU long term permit. The application was rejected by the Immigration and Naturalization Service (hereafter: IND) due to a 4-day residence gap that he unknowingly obtained in 2019. Andrew's employer had submitted the extension application too late and had not informed Andrew about the residence gap that he got as a result of the late application. At the time, the IND did not notify Andrew by letter about the residence gap or his right to submit his own view of the facts. Andrew became aware of the residence gap when the EU long term permit application got rejected.

The objection and appeal process

Mynta Law assisted Andrew in the objection and appeal proceedings. It was argued on Andrew's behalf that he should have been notified by letter about the residence gap and of the opportunity to submit a written opinion. Given the current policy, an application submitted within four weeks after the expiry of a residence permit cannot result in a residence gap. The residence gap should therefore not be deemed to have arisen, as a result of which the EU long term permit should have been granted. Subsequently, it was argued that the rejection of the EU long term permit violated the Union law principle of proportionality. After all, the relatively short residence gap would not even have resulted in a residence gap in light of the new policy.

The Hague District Court's judgment

On 7 June 2023, the District Court of The Hague upheld the appeal, despite their opinion that a residence gap did arise. According to the Court, Andrew could have inferred from the effective date on the reverse side of the residence document that a residence gap had arisen, and it was his own responsibility to inquire with his employer about his legal status.

However, the Court considered the rejection of the EU residence permit, because of the residence gap, to be disproportionate. The Court considered that the residence gap would not have arisen under the new policy, as the application was submitted less than four weeks late. Furthermore, the new policy had already entered into force at the time of the rejection of Andrew's EU long term permit application. In addition, Andrew complied with the conditions for the residence permit during the residence gap. Finally, the relaxation of the policy stemmed from a desire to be more tailor-made and to consider the proportionality and impact of the residence gap. The Court held that the rejection of the EU long term permit was disproportionate to the purposes to be served by it.

Acquiring an EU-Long term residence permit with a residence gap?

If you have a residence gap shorter than four weeks, you may still be able to apply for an EU-long term permit. Should you have questions about the EU-long term application and/or the effect of this judgement, please feel free to contact us. You can ask your questions via the contact form, or you can contact Nadine Vrijsen directly.