Non-EU family members of an EU citizen: how to get a permanent residence permit

You are a non-EU family member of an EU/EER citizen. You are in possession of a residence card mentioning the following texts: “residence card for a family member of an EU citizen” (old version) or “Fam. van een burger van de Unie conf. art. 10 Richtl. 2004/38/EG” (new version). You have been living five years in the Netherlands. How can you obtain a permanent residence permit? What should you be careful about?

EU Directive 2004/38

The residence rights of EU citizens and their non-EU family members are specified in the EU Directive 2004/38. On the basis of this Directive, after living 5 years in an EU country, non-EU family members can obtain permanent residence. In the context of this Directive, this type of permanent residency is called permanent stay ("duurzaam verblijf" in Dutch). This permanent stay permit is different from EU long term stay that a third country national can obtain under the scope of the EU Directive 2003/109. In this article, we shall also discuss the issue as to whether permanent stay is really better than EU long term stay.

A Practical Hurdle

Theoretically speaking, it should be relatively easy for EU citizens and their non-EU family members to obtain permanent stay. However, in practice, there can be complications. Since April 2015, when reviewing an application for permanent stay, the Netherlands Immigration and Naturalization Department ("the IND") do not only examine the issue as to whether an EU citizen and/or the (non-EU) family member(s) have been living five years in the Netherlands, but the IND also investigate whether the other conditions have been constantly fulfilled over the last five years (such as, the requirement of sustainable income, employment contract and health insurance etc.). This practice is rather arbitrary and does not happen in some other EU countries. In November 2017, the Council of State upheld this arbitrary practice of the IND, giving a confidence boost to the IND to continue their arbitrary practice. In the judgement of 15 November 2017, the Council of the State refer to the Ziolkowski & Szeja judgement of the European Court of Justice, reiterating that legal residence should be in conformity with the conditions as stipulated in the Directive 2004/38, in particular that of article 7 of the Directive. A stay that does not meet the conditions of article 7 of the Directive should not be considered as legal stay for the purpose of acquiring permanent stay. Since the publication of this judgement, the IND have been asking EU citizens and their (non-EU) family members to provide the IND with numerous documents if they want to acquire the status of permanent stay. For instance, an applicant will need to provide the IND with employment contracts, health insurance policy providing coverage during the previous 5 years and/or evidence showing you have had a bank account registered to you on an address in the Netherlands during the previous 5 years etc.

Loss of Permanent Stay

Once someone gets the status of permanent stay, the right of permanent residence shall be lost through absence from the host Member State for a period exceeding two consecutive years. Does it mean that you can maintain your status of permanent stay through returning to the Netherlands a few times per year? In August 2019, the Court of the Hague ruled in a judgement that absence means ‘qualitative absence’ (not physical absence). While referring to the Dias and Lassal judgements of the European Court of Justice, the Dutch judge is of opinion that an EU citizen who spends a few days or a few weeks per year in the Netherlands and visits his/her family in the Netherlands has only loose relationship with the Netherlands, which is not sufficient for maintaining the status of ‘permanent stay’.

Comparison between Permanent Stay and EU Long Term.

Permanent stay and EU long term are governed by different EU directives (namely, Directive 2004/38 and Directive 2003/109). For EU citizens, after living five years in the Netherlands, they can only apply for a permanent stay document under the Directive 2004/38, as an EU long term stay permit cannot be issued to an EU citizen. Nevertheless, for non-EU family members of an EU citizen, they can actually choose between permanent stay and EU long term stay. The secret is that EU long term is probably a better option, as the EU long term permit gives the holder mobility rights within the European Union. It means that, with an EU long term permit, a non-EU family member can choose to move to another EU country independently and enjoy better treatment in that second Member State. Instead, with a permanent stay permit, a non-EU family member has always to move together with his/her EU family member. For example, A 20-year-old Jamaican citizen has obtained the status of ‘permanent stay’ in France, on the basis of his relationship with his French stepmother. With his ‘permanent stay’ permit, he can hardly move to the Netherlands alone for the sake of attending university, as he does not get any preferable treatment in the Netherlands. Instead, if the same Jamaican youngster has an EU long term permit, he will be exempted from the MVV entry visa requirement, will be able to get unrestricted access to the Dutch labor market after living one year in the Netherlands and will be entitled to home/EU fees while attending university in the Netherlands.

Should you have any questions about the permanent stay permit, please feel free to contact Mynta Law.