April 25, 2012

The Dutch Immigration Service (IND) has announced several important changes to the law of family migration. Effective July 1, 2012, nationals of non-European Union (non-EU) countries who are unmarried partners will no longer be eligible for family reunification except in very limited circumstances. In addition, the IND is restricting the eligible definition of immediate family as well as reducing the amount of time a resident permit holder may remain outside the Netherlands.

What’s Changed?

As many EU-member countries face increasing economic austerity reforms, in order to preserve accessibility of social insurance programs, EU countries are changing their family reunification laws to reduce instances of fraudelent marriages and/or limit the amount of family members that can join a work or residence permit holder. These new austerity measures are causing contentious debate amongst many member country governments and further changes to border control and immigration policies within the EU may occur.

According to the IND’s April 14, 2012 “Bulletin of Acts and Decrees” several new measures will come into effect on July 1, 2012 that will significantly reduce the ability for family to join a non-EU national sponsor in the Netherlands (“family reunification”).

In a rather unexpected move, IND announced that on July 1, 2012, it will close its borders to most unmarried couples. For corporate assignees, this means that the non-EU partner (i.e.,a person not married or in a civil partnership) of a non-EU employee will not be eligible for a Dutch residence permit based on “staying with unmarried partner”. In order for unmarried partner to join the employee, the couple will be required to either legally marry or obtain civil registration of their partnership prior to applying to enter the Netherlands.

Under the new law, an exception will apply to those couples who are unable to legally marry or obtain registered partnership in their home country (e.g., same-sex couples). These couples can apply for a “temporary marriage permit” and must marry or enter into a registered partnership within six months of arrival in the Netherlands. Within six consecutive months of legal residence, the sponsoring individual may apply to change the accompanying partner’s status to a long-term residence permit.

An additional exception to this rule also applies if a non-EU employee is accompanied by an EU-national unmarried partner. The accompanying EU-national partner may legally reside with his or her unmarried, non-EU national partner.

For U.S. citizens, it is anticipated that the IND will recognize a civil union or marriage certificate issued by a U.S. state or territory as evidence of a qualified relationship for Dutch immigration purposes.

The Netherlands will also not recognize another EU-country’s laws recognizing unmarried partners. If an employee is an EU national and wishes for his or her non-EU unmarried partner to join in the Netherlands, on July 1, 2012, this will no longer be possible unless the couple is willing to enter into a marriage/registered partnership abroad or undergo the “temporary marriage permit” application in the Netherlands.

While the above scenarios represent the most important change in the law, readers may review the IND’s complete announcement here.This announcement also outlines several new changes to be implemented on July 1, 2012 as follows:

  • The amount of time a spouse must spend in non-immigrant status prior to applying for Dutch permanent residence will be increased from three consecutive years to five consecutive years;
  • Family relatives visiting the Netherlands will have their maximum duration of stay reduced to 90 consecutive days within a given 180-day period. “Extended visits” of up to 180 consecutive days will no longer be available;
  • Extended family reunion (e.g., sponsoring adult family members) will no longer be possible;

The “time abroad” status has been reduced from nine consecutive months to six consecutive months. Therefore, non-EU national employees and family members who physically remain outside the Netherlands (“time abroad”) for more than six conseuctive months will automatically lose right of residence in the Netherlands.

ACTION ITEMS FOR EMPLOYERS

On April 28, 2012, the Dutch Prime Minister, Mark Rutte, formally resigned his post over new austerity measures imposed by the EU Commission. Given the poltical uncertanty within the Dutch Government, companies are advised that the above new regulations may or may or not come into effect on July 1, 2012.

For companies with assignees who are joined by unmarried, non-EU national partners having valid Dutch residence permits, it is not expected that these new regulations will affect unmarried partners. In these situations, unmarried partners should be allowed to renew their residence permits prior to the time of expiration. It is critical that companies assess those assignments meeting this condition to ensure that a timely residence permit renewal application is filed in order to avoid the unmarried partner’s loss of status.

For the above scenarios, applications for residence filed with the IND on and after July 1, 2012 are expected to be adjudicated under the new regulations.

While it is expected that these new regulations will very much curtail unmarried partner’s and extended family’s ability to immigrate to the Netherlands, the opportunity to obtain status in these situations will soon be drawing to a close. Companies who are considering assignees with non-traditional family members should carefully review present and future Dutch immigration regulations with their global immigration suppliers to determine if these types of assignments are in the best interests of the company and the employee.

Companies are advised to closely monitor a Dutch assignee’s and family member’s “time abroad” outside the Netherlands if the assignee is considered for an assignment to another country, including to another EU-member country.

Starting July 1, 2012, Dutch residence permit holders should not remain outside the country for more than six consecutive months if assigned to another country. If it is anticipated that they will be abroad for lengthy periods of time, assignees and family members will need to make return visits to the Netherlands in order to preserve their Dutch residence status.

Glenn Faulk, Global Knowledge Manager, has written this alert in coordination with Personal Relocation B.V.

Caveat Lector | Warning to Reader

This content is provided for general information purposes only and does not constitute legal advice or final guidance for any immigration matter. Readers are reminded that a country’s immigration laws and requirements may change with little to no advance public notice. Questions regarding specific immigration matters should be addressed to your Pro-Link GLOBAL specialist.