Breaking up: How will it affect your residence permit?
Kroes Advocaten Immigration Lawyers is a leading boutique law firm specialised in corporate migration and arranging residence permits for private individuals. In this article, Sarah Lindeboom, attorney at Kroes Advocaten, discusses the consequences of a break-up when it comes to your right of residence.
After living with your partner or spouse in the Netherlands for several years, you have reached the conclusion that you can no longer remain together. But what if your residence permit is based on your relationship or marriage?
Aside from going through an emotionally difficult time, you will also have to be concerned about retaining your legal residence in the Netherlands. There might be children involved who go to school here and are settled in this country.
Break-up of a relationship or marriage (without children)
If your marriage or relationship ends and you haven't had children with your partner, you will be in the least favourable situation. From the moment you separate and live apart, your residence permit becomes invalid. After all, you are no longer together with the person on whom your right of residence depended.
However, if you have had a continuous legal residence in the Netherlands for the past five years, and passed the civic integration exam (A2), you qualify for continued residence after the end of a relationship or marriage. If not, you will have to look for another individual purpose of stay, such as a permit based on work. This is not easy. For a highly skilled migrant permit or an EU Blue card, high-salary criteria have to be met.
Japanese and American nationals have it easier in this respect. This group can fulfil the criteria for a residence permit as a self-employed person fairly easily.
Also, advantageous criteria apply to Turkish nationals: they become eligible for continued residence after a relationship or marriage has lasted three years and they do not have to pass the integration exam.
Favourable rules apply if you have had a relationship or marriage with an EU national (note: this generally does not apply to relationships or marriages with Dutch nationals) and you have sufficient means of income to support yourself or can substantiate that you will have these means within a reasonable period of time (so that you will not have to rely on public welfare funds).
If you were married to an EU national for three years and resided together in the Netherlands for one year, you will be allowed to keep your residence card. If you were in a relationship with an EU national, you will be allowed to keep your residence card if your relationship and cohabitation in the Netherlands lasted for at least three years.
Break-up of a relationship or marriage (with children)
If your relationship or marriage ends and your joint children are still minors, your circumstances are favourable. In all of the cases I have dealt with, which covered similar situations, my clients were allowed to stay in the Netherlands.
Break-up of a relationship or marriage with a non-EU national (children are not EU nationals)
The following rules apply if your former partner or spouse and your children (minors) are not Dutch or other EU nationals. If you separate, your residence permit, which was based on the relationship or marriage, will no longer be valid. Your joint children and former partner or spouse will keep their residence permit in the Netherlands.
In this case, you can apply for a residence permit to stay with your children based on Article 8 of the European Convention of Human Rights. This concerns the right to protection of family life.
Certain interests will be taken into account when you apply for this kind of residence permit, including the age of the children, legal custody of the children, the frequency and regularity of contact with the children, alimony and the possibility of exercising family life in another country. A parenting plan must be submitted to prove that you will structurally contribute to the upbringing of the children.
In my experience, if this proof is submitted and you and your family have been living in the Netherlands for some time, the application will be approved. In addition, it is important to show that you will not be relying on public funds. This can be done by means of an employment contract.
Break-up of a relationship or marriage with an EU national (children are EU nationals)
If you were married to or had a relationship with an EU national, your joint children will also be EU nationals (note: different conditions, as set out below, apply to the termination of a relationship with a Dutch national).
In this case, you can also look to the above policies for guidance, but there are other options as well. For example, you will also retain your right of residence if you are awarded sole parental custody.
The same outcome applies if there is a parental contact arrangement and the court decides that this contact should take place in the Netherlands. For both options, you will have to substantiate that you have sufficient means of income to support yourself or that you will have these means within a reasonable period of time.
However, if the children attend school in the Netherlands and you are the primary caretaker, you will be exempt from submitting the details of your income. This also applies if the other parent, i.e. your former partner or spouse, no longer resides in the Netherlands.
Break-up of a relationship or marriage with a Dutch national (children are Dutch nationals)
If you had a relationship or marriage with a Dutch national, and your joint children (minors) are also Dutch nationals, you are in a very favourable position with regards to your right of residence. In fact, the policy changed very recently, following the ruling of the Court of Justice of the European Union on May 10, 2017 (the Chavez-Vilchez judgment).
You may retain your right of residence if you can show that there is a relationship of dependence between you and your Dutch minor child, such that the child would be forced to leave the territory of the European Union if you are not granted a right of residence. Under this policy, such a relationship of dependence is deemed to exist in any case where you take on care and / or educational responsibilities (regardless of the extent or frequency).
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