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Privileged foreigners and permanent residence permit
This case concerns a privileged foreign national who has applied for a permanent residence permit. This was rejected by the IND because the privileged foreign national did not reside in the Netherlands for 10 years immediately prior to the application. Edward van Kempen has argued this case before the court.
The facts are as follows: as a family member of a privileged person, the foreign national has had a residence permit as a privileged person in the Netherlands in the period from 29 October 2006 to 16 February 2018. In other words, more than 10 years. At that time, the mother of the foreign national worked for the United Nations International Criminal Tribunal for Yugoslavia. In March 2018 he deregistered from the Municipal Personal Records Database (BRP) and then went to the United States. In 2022, he submitted an application for a permanent residence permit (residence permit for an indefinite period) to the IND. He has lived in the Netherlands for most of his life and therefore wants to return to the Netherlands. He is also enrolled in a school in The Hague.
The IND rejects the application because he has not had a privileged residence permit for at least ten years immediately prior to the application.
Edward van Kempen argues on behalf of the foreign national that nowhere in the Immigration Act and regulations does it state that the ten-year period of residence must have been immediately prior to the application. It is contrary to the principle of legality to object to this requirement. At the time the application was submitted (and still is not), the ten-year residence requirement immediately prior to the application is not included in the Immigration Act and the Immigration Decree 2000.
The court in its ruling has indeed established that it does not follow in so many words from Article 3.93 of the Immigration Decree 2000 (which describes the conditions for permanent residence permit for privileged foreigners) that there must be lawful residence immediately prior to the application.
The court then goes on to say that the court will therefore assess how this provision should be interpreted. The court does this on the basis of the legal historical and legal systematic explanation.
The court comes to the conclusion in the ruling that the privileged person in this case is not eligible for a permanent residence permit. It is important for the court that if the foreign national’s point of view were to be followed, this would mean that privileged foreign nationals and their family members would have an unlimited return option to the Netherlands. After having had a privileged residence permit in the Netherlands for ten years, they can then leave the Netherlands and still be eligible for a residence permit for an indefinite period at any time (even if that is many years later). According to the court, this is not what the legislator intended.
Edward van Kempen has lodged an appeal against this ruling. So to be continued.