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More expat children to benefit from student finance, rules Amsterdam District Court

More expat children to benefit from student finance, rules Amsterdam District Court

More expat children to benefit from student finance, rules Amsterdam District Court

The practice of Mynta Law centres around business immigration and covers a few related fields of law such as Dutch nationality and EU citizenship, international employment law, and social benefits. Clients are both Dutch and foreign companies as well as individual expats and their families.

University degrees are probably among the most important, but also most expensive investments, in a young person’s career. This is why expat families in the Netherlands seek affordable options that enable their children to study at a university in the Netherlands. A recent verdict from the Amsterdam District Court will enable many expat families to decrease their study costs dramatically.

Student finance and statutory tuition fees

The Amsterdam court verdict is about the right of expats to claim a benefit called “student finance”. Student finance is a government loan under favourable conditions meant to make university education financially accessible to all. The beneficiaries of student finance also pay much less in university tuition fees than those who are not entitled to student finance. The difference between the low “statutory tuition fee” and the high “university tuition fee” easily amounts to ten thousand euros per student per year.

According to the Dutch Wet Studiefinanciering 2000 (Law on student finance 2000), however, student finance is available only to Dutch nationals and those who by law should receive equal treatment to Dutch nationals.

This will make expats wonder whether they too should receive equal treatment to Dutch nationals.

Under the complex legislation surrounding this nationality requirement, it is a combination of a person’s nationality and residence permit type which determines his or her right to student finance. As said, this has a crucial impact on the eventual cost of higher education in the Netherlands, because being eligible for student finance automatically grants you the right to pay only statutory tuition fees, rather than the much higher university tuition fees.

So, who is eligible, and who is not?

EU/EEA/Swiss citizens and their direct family members are entitled to student finance, as are admitted refugees and holders of permanent residence permits, referred to as “type II, III, IV, and V”.

Contact Mynta Law to find out if this could be a game-changer for you 

Unfortunately for many expats, the conditions for obtaining permanent residence permits are strict; the applicant needs to have been a legal resident in the Netherlands for five years, and they must have passed the civic integration exam.

An important category of students-to-be, whose applications for student finance often get refused on the basis of nationality, are the children of knowledge migrants, researchers, and other employment-based expats. Their residence permits are referred to as “type I”.

Even if the residence permits of these children have already been made independent from their parents’ right of stay, giving the children a direct prospect of a permanent future in the Netherlands, their applications for student finance still get refused, and any finance already granted often gets withdrawn.

Game-changer for expat families

However, in early January 2019, a judge of the Amsterdam District Court passed an important and well-reasoned verdict that could mean a real game-changer for expat families in the Netherlands looking to cut the cost of studying in the Netherlands.

The difference in treatment is discriminatory, says the Amsterdam District Court. 

The District Court judge has ruled that the legislation involved violates non-discrimination law stemming from the European Convention on Human Rights (“ECHR”) because it grants student finance to some holders of independent residence permits, but not others, without stating a clear, convincing reason for this difference.

As a consequence of this judgment, children of expats in the Netherlands may be able to pay significantly lower tuition fees in the near future.

Independent residence permit is the key

Independent residence is also known as “non-temporary humanitarian residence” (verblijf op niet-tijdelijke humanitaire gronden). According to Dutch immigration law, there are several different categories of individuals who qualify for such a residence permit.

For instance, a person who has been unable to leave the Netherlands for over three years due to medical reasons can obtain an independent residence permit.

The same applies to victims of domestic violence or human trafficking who assist authorities with the prosecution of their perpetrators.

But there are also much less dramatic and, luckily, more common situations: a knowledge migrant or other employment-based migrant’s child may apply for the same type of independent residence permit after having stayed for a year under a family-based residence permit. Spouses and unmarried partners can apply after five years, provided they have passed the integration exam.

In the end, all these very different roads lead to Rome, meaning that all the people mentioned above receive the same type of residence permit: the “non-temporary humanitarian” permit. The IND, after issuing this permit, does not differentiate any further.

Unfortunately, however, DUO, the organisation handling student finance applications, does differentiate. Under the complex legislation surrounding the nationality condition in student finance, some holders of the independent residence permit are allowed student finance, where others are not. To determine this, DUO looks back at what type of residence permit the applicant had before obtaining the independent residence permit.

According to the law, student finance is only provided if the previous residence permit is tied up with “real” humanitarian causes, such as human trafficking or domestic violence. If the initial residence permit is a mere family-based residence permit, the holder does not qualify for student finance.

Difference in treatment

Therefore, the Amsterdam District Court’s verdict is causing a small earthquake. The Court has ruled that, regardless of the origin of a person’s independent residence permit, the fact remains that all holders of this permit have the same direct prospect of a permanent right of stay in the Netherlands. They therefore cannot be regarded as mere temporary visitors for whom unequal treatment regarding access to university would be in order.

The difference in treatment is therefore discriminatory, says the Amsterdam District Court. This judgment is scrupulously well-reasoned and convincing, and we invite all expats who wish to claim their right to equal treatment in this matter to contact a lawyer for individual assessment.

We underline that financially the difference between student finance and no student finance is enormous, particularly because of the significant difference between statutory and university tuition fees.

The Dutch Minister of Education still has the right to appeal the Amsterdam District Court’s verdict at the Central Court of Appeal in Utrecht. The deadline for this is February 19, 2019. If the Minister chooses not to appeal the District Court’s ruling, the verdict will become final and its content will be binding.

Arend van Rosmalen and his colleagues at Mynta Law have vast experience with all the relevant immigration laws and student finance procedures in the Netherlands.

Mynta Law works for individual expats as well as employers. The practice centres around immigration and covers a few related fields of law, such as Dutch nationality and EU citizenship, international employment law, and social benefits. 

Arend

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Arend van Rosmalen

Arend van Rosmalen practices law as a partner of Mynta Law in The Hague, prior to which he worked with an immigration law firm in Amsterdam, did legal research for...

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