Staying in the Netherlands after Divorce
When an international couple is facing divorce and one of the individuals in the relationship is a non-EU national on a family-based permit, it is important to find an alternative right of stay for that individual. The potential residence permits that could be obtained are dependent on the nationality of the individual, the length of the relationship, and whether the individual has a child. This article sets out a few possibilities.
Stay of five years or longer in the Netherlands
If the non-EU individual has stayed in the Netherlands for over five years, they may be eligible for a permanent residence permit. You can read more about the requirements here.
Stay of less than five years in the Netherlands
With a Dutch child
If the non-EU national is the parent of a minor Dutch child, then the non-EU national can apply for stay based on their relationship with the Dutch child. This residence permit is referred to as a Chavez permit, named after the relevant court case. To be granted the permit, the non-EU national will need to demonstrate the relationship and dependency between themselves and the Dutch child. This can include photos, statements from families, schools and/or friends, doctors and psychologists and other third-party verifiable sources and authorities, the child’s birth certificate, etc. Proof of financial dependency between the non-EU parent and the child can also support the application. If approved, the permit will be valid for five years or up until the date the child turns 18.
With a non-Dutch child
If the non-EU national is the parent of a child but the child is not Dutch, it is still possible to submit a family-based residence permit allowing the parent to stay with the child. This type of permit is referred to as an ‘Article 8’ permit, in reference to the legal article on which the right to stay is based. The three main factors that the IND will consider when deciding whether to grant an Article 8 visa are set out in the Vreemdelingencirculaire 2000 (henceforth: Vc), section B7/3.8.
The first factor is whether there is family life between the non-EU national and non-Dutch child. Section B7/3.8.1 Vc states that the IND will assume there is family life as referred to in Article 8 ECHR between parents and their minor children born from a real marriage. Per the court case Mustafa and Armagan Akin v Turkey, family life between a child and their parent is not negated by a divorce.
The second factor is whether denying the non-EU national would amount to an interference in the family life that is contrary to a state's obligation to respect family life. If the non-EU national has already held a residence permit in the Netherlands for some time, this right will be more strongly defendable.
The third factor is a balancing the interests of the individual versus the interests of the state. Interests of the state encompass “interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others". Considerations can include whether the non-EU national has any criminal convictions or is dependent on unemployment benefits. In considering the rights of the individuals, the IND will put the most weight on the interests of the child. The interests of the child are held to be "paramount' in any decision pertaining to them (El Ghatet v Switzerland). Based on case law, indications that staying in the Netherlands would be in the interests of the child can include a long period of time living in the Netherlands, the young age of the child, a strong integration of the child into Dutch society, and/or extended family members living in the Netherlands.
Without children
If the non-EU national has lived in the Netherlands for less than five years and does not have a child, they will need to pursue an alternative type of residence permit. Options could be an employment based permit, a Dutch American Friendship Treaty permit, a self-employment permit, or a family permit.
Questions?
If you are considering divorce and have questions about your best approach to stay in the Netherlands, please send an email to Ashley Bruce at bruce@mynta.nl.
