Revoking a student permit: IND decision reversed and remanded by Court

On 26 April 2022, the Court of the Hague reversed and remanded an IND revocation decision, with regard to a foreign student’s residence permit. On the basis of Dutch laws, the Immigration and Naturalization Department (“IND”) can revoke a student’s residence permit on various grounds. Before we delve into the court opinion, let’s first examine the various revocation grounds.

In the Netherlands, higher-educational institutions need to comply with the "Code of Conduct International Student in Dutch Higher Education" (hereafter: the Code of Conduct). According to the Code of Conduct, international students must obtain at least 50% of the nominal study credits every academic year in order to retain their student visa status. Unless the student has an acceptable reason as to why he/she cannot accomplish the required number of study credits, the school is obliged to report the student’s unsatisfactory academic standing to the IND in a timely manner (ie. within 1 month). Standing in contrast to degree program students, pre-master students must obtain 100% of the prescribed study credits. If you, as a student, fail to achieve the required number of study credits, you should first reflect on the underlying causes of the insufficient academic standing. If you are encountering one of the following issues, you should contact your school and request the school to refrain from reporting you to the IND in pursuance of the aforementioned Code of Conduct and the ‘Royal Decree of Dutch Higher Education’:

• You have been ill;
• You have been suffering from physical and/or mental ailments;
• You are pregnant;
• You have been having special family circumstances; or
• You have been playing an active role in a student association and your poor academic performance is caused by your involvement in the association.

It should be noted that each of the aforementioned reasons can be invoked only once. For example, if you invoked the special family circumstances last year for the purpose of retaining your student visa, you may not use this same legal ground again this year in accordance with the Code of Conduct.

Other reporting duties of the school

In pursuance of the ‘Ministerial Immigration Policy’, Dutch universities will also report the following issues and/or changes to the IND:

• You have changed your study workload from full-time to part-time;
• You have terminated your study pre-maturely;
• Your course program is no longer recognized by the Dutch Government;
• You do not meet the study progress requirements;
• You are participating in an exchange program; and/or
• You no longer have sufficient and sustainable means to provide for yourself.

Consequences of being reported to the IND

If you have been reported to the IND due to your insufficient academic performance, the IND will initiate the process of revoking your study permit. On the basis of Dutch administrative law, the IND need to provide you with an opportunity to explain your unsatisfactory academic standing before the IND can cancel your student visa. In some cases, your school may not be willing to continue sponsoring your visa, while the school allows you to follow classes, to sit for exams and to finish your thesis through enrolling you as a student. However, you should understand that since you have lost your right of abode in the Netherlands, most Dutch companies will not offer you an internship. If an internship is a compulsory component of your study program, your loss of residence implies an immense difficulty to graduate. Therefore, it should be clear that the school permitting you to continue your study and the school sponsoring your residence permit are two distinct issues.

New court opinion

In the latest case, petitioner Mr. X is an international student from Saudi Arabia. He did not manage to obtain enough credits and was hence reported by the school to the IND. The university further decided that it would no longer act as X’s visa sponsor and, as such, his residence permit was withdrawn by the IND. X challenged the IND decision before the Court of the Hague and his argument was accepted by the judge. One of the major justifications of his case is the principle of proportionality.

The principle of proportionality is one of the fundamental legal principles adopted by the EU jurisdictional system. Simply put, this principle requires administrative and judicial bodies to fully scrutinize all stakeholders’ interests and circumstantial factors relevant to a case before making a decision. Measures that ensue from the decisions must be proportional to attain the objectives. In this case, although X did not fulfil the study requirements, the Court considered the predicament that he was situated, and acknowledged his attempts to achieve the goals. In particular, the Court looked at which courses he had completed and how many credits he plans to attain with an unequivocal indication of the expected date of graduation. In this case, his plans were concise, clear and achievable. The IND cannot revoke one’s student permit merely because the student in question fails to attain the required study credits, without taking other factors, such as the attainability of study goals in a foreseeable future into account.

Therefore, despite the legal requirements of the fulfilment of study credits, this judgment serves as a supplementary interpretation and condition on the enforcement of this provision. A detailed explanation as to why one fails to achieve the required study goal and the use of an extensive plan to convince the authority how will one complete the study goals in the upcoming academic year(s) will be of paramount importance when constructing a legal argument in support of prolonging a student’s legal residence in the Netherlands.

If you are encountering similar hardships, you are welcome to contact Mynta Law. We may help you retain or restore your (temporary) legal residence status through judicial procedures. You may contact us through filling out the contact form on our website.