How Not To Transfer Your Main Residence - Everything Expats Should Know

Expats living in the Netherlands often ask this question: how much time can I stay abroad without risking my residence permit? A valid questions, because most temporary residence permits and even some permanent residence permits can be withdrawn when you "transfer your main residence outside the Netherlands". Even if this is not the case, a transfer of your main residence could still make you ineligible for Dutch citizenship through naturalization or a permanent residence permit. So what is this important notion of "main residence" and how precisely do you (not) transfer this outside the Netherlands? In this article, Mynta Law's partner Arend van Rosmalen LL.M. explains the topic of main residence inside out, so you know all you need to know about it.

What is main residence?

The Immigration Act 2000 does not hold a statutory definition of "main residence". Sections 19 and 18(1)(a) of this Act merely enables the Immigration and Naturalization Service (IND) to not renew and even (retroactively) withdraw a temporary regular residence permit when its holder transferred their main residence outside the Netherlands. Paragraph B1/6.2.1 of the Immigration Circular 2000 sets out that, in order to determine whether someone transferred their main residence outside the Netherlands, the IND determines all the facts and circumstances of each particular case. The policy does contain certain maximum terms of absence, and anyone having breached these maximum terms of absence certainly will have a case to answer. But a breach of these terms does not necessarily imply a transfer of main residence; the IND will always need to look at "a person's intentions, as shown by that person's conduct". Any discussion about main residence is and remains a factual discussion, where evidence of your conduct and intentions is important.

So what are the maximum terms of absence?

Paragraph B1/6.2.1 of the Immigration Circular 2000 generally states two maximum terms of absence:

• If you spend "more than six consecutive months" outside the Netherlands, you are deemed to have transferred your main residence outside the Netherlands, unless you would be able to state a plausible case on extenuating circumstances. A severe illness, very serious moral obligations that arose while you were abroad, or unexpected travel delays could be important factors. The IND will, again, look to determine your intentions, as shown by your conduct.

• If, during "three consecutive years" you spend "more than four consecutive months" outside the Netherlands, you are also deemed to have transferred your main residence outside the Netherlands, again with the exception of extenuating circumstances. The IND website clarifies that, in order to trigger this rule, within each of three consecutive calendar years, there must have been a period of "more than than four consecutive months" of absence from the Netherlands.

These general rules, therefore, do not preclude the holder of a regular residence permit from regularly travelling abroad for short periods of time because they do not look at accumulated periods of absence.

What if I stay clear of these terms of absence?

In a remarkable ruling dated 22 March 2023, the Council of State has ruled on the effect of an earlier (and slightly different) version of the rule stated in paragraph B1/6.2.1 of the Immigration Circular 2000. According to this ruling, no transfer of main residence would be possible as long as you would just stay clear of the two maximum terms of absence. This position has, to my knowledge, never actually been accepted by the IND, who have always maintained that whenever someone transfers "the centre of their activities" outside the Netherlands, even if they ensure never to spend "more than six consecutive months" abroad, they still transferred their main residence, giving the IND cause to withdraw their residence permit. The Immigration Circular 2000 was amended with effect from 1 October 2023, making this more explicit.

What factors are relevant?

Many cases involving main residence begin with children "skipping school". Any child registered in the Netherlands must attend school, and schools must report prolonged periods of absence. In such cases, and especially when children are not registered to attend any school, the local authority is bound to notice, will start making enquiries, and this is often how a transfer of main residence is revealed. Clearly, where children are attending school abroad, that is an indication their main residence is not in the Netherlands, and it would be fair for the IND to raise questions about the parents' whereabouts as well. Again, in such a situation, it is important to raise your own evidence and statement of facts when the IND provides an opportunity to do so, since every case is unique and no single factor or piece of evidence will close the lid on any main residence case.

Deregistration from the BRP register is another common cause for disputes about main residence. Occasionally, local authorities have concerns about overpopulation of homes, and may make enquiries about who actually occupies a certain address. It happens that people leave mail sent by the local authority unopened, and this can cause the local authority to deregister an entry in the BRP system, automatically alerting the IND. In a case like this, it is especially important to present evidence and to restore the registration in the BRP system as soon as possible. A mere short-term deregistration from the BRP system, especially if caused by mistake or a misunderstanding, is not a severe indicator of a transfer of your main residence, but it will almost certainly call for an explanation, and evidence of your actual whereabouts.

Other factors indicating a transfer of main residence would include the closing of a business in the Netherlands and the opening of one abroad, the termination of employment in the Netherlands and the assumption of employment abroad, the closing of bank accounts, termination of health insurance, the sale or sub-letting of a home, and so forth. Contrarily, in case of a dispute, it will be important to show to the IND that you did none of these things. The IND, after all, is concerned with your intentions as shown by your conduct.

Are there exceptions?

There are two types of exceptions within the context of main residence. First of all, there are situations where EU law prevents the withdrawal of residence permits even if there is a transfer of main residence. This is the case if your residence permit is a family-based residence permit, and your sponsor is either a Dutch citizen or a non-EU citizen with a valid residence permit. In a ruling dated 18 June 2019, the Council of State held the main residence requirement as such to be incompatible with Directive 2003/86/EC on the right to family reunification. Instead, the IND must determine whether you and your family member(s) are no longer living in a real marital or family relationship. Please take note that only a dependent family member's residence permit is governed by this Directive, so the transfer of main residence by a sponsor could still cause the withdrawal of both their own and their dependent family members' residence permits.

A second set of exceptions operates within the concept of main residence itself. Paragraph B1/6.2.1 of the Immigration Circular 2000 itself sets out a number of specific exceptions to the two above-mentioned maximum terms of absence. The most common exceptions are the following:

• There are specific exceptions for international students and scientific researchers taking part in an exchange or other temporary assignment abroad.
• There is an exception for the holders of residence permits issued for work which partially has to be carried on outside the Netherlands.
• There is an exception for people leaving the Netherlands to perform military service in their home country, provided they return to the Netherlands within six months after completing their service.
• There is an exception for holders of a Highly Skilled Migrant residence permit. A highly skilled migrant is deemed not to have transferred their main residence as long as they do not spend more than eight months out of twelve months outside the Netherlands. Unlike the general maximum terms of absence, this exception refers to cumulative absences, so that multiple short business trips would have to be added up. However, even if a Highly Skilled Migrant spends more than two-thirds of a year outside the Netherlands, that does not necessarily imply a transfer of their main residence. It would only imply that the exception itself would no longer apply.

What can I do if I want to spend more time abroad?

If you want to spend more time abroad, but are afraid this will not give the IND cause to withdraw your residence permit? Mynta Law can advise you about what absences the rules allow you, and what different residence permit you might be able to apply for, which would enable you to spend more time abroad. An EU Long Term residence permit allows for absences from the territory of the European Union for up to one year. As stated above, a family-based residence permit is not restricted by any main residence requirement, as long as your real family ties are unbroken. Finally, you may decide to apply for naturalization in order to leave the Netherlands without risking the loss of the right to return. If you need to spend more time abroad than the rules would strictly allow you, then we can advise you about how you could best disclose your specific situation to the IND, and we can assist you with doing this.

Need detailed legal advice about main residence?

If you need specific legal advice about main residence, you can schedule a consultation with Mynta Law.