Criminal offences and right of residence
Everaert Advocaten is a respected leader in Dutch immigration law. Based in Amsterdam, its multilingual team advises expats on residency and immigration-related legal issues.
Foreign nationals of 12 years and older who apply for Dutch residence permits must provide information about their criminal record by completing an antecedents certificate.
As we occasionally receive questions about the consequences of criminal antecedents on entry to and residency in the Netherlands, some context is provided in this article.
One of the basic requirements when applying for residency in the Netherlands is that one may not pose a threat to the public order or national security. The application will be rejected when an applicant has been convicted and sentenced or sanctioned irrevocably for a criminal offence, and the applicable statute of limitation period has not expired.
In case of a foreign conviction, the IND involves the Dutch Prosecution’s Office (OM) to assess what the corresponding offence and sentence are according to the Dutch penal code and sentencing guidelines. Only criminal offences which qualify as a crime in the Netherlands will be considered.
For example, attempted assault is a punishable crime in the US but not in the Netherlands. A conviction for this crime in the US can therefore not block a residency application in the Netherlands.
Many people think that possession of certain illegal substances for personal use is not a criminal offence in the Netherlands, which is incorrect. A conviction for possession can certainly impact a residency application.
If you already have a Dutch residence permit, involvement with the criminal justice system may lead to the withdrawal or the rejection of an extension of your permit, and a travel ban.
Relevant are criminal offences which are punishable with at least two years of imprisonment. In this procedure, the duration of legal residency is compared to the severity of the crime and punishment and the number of convictions.
Public order offences must be increasingly serious the longer someone has legally resided here, in order to justify the loss of right of residency. This is called the “sliding scale”.
Important to note here is that an interruption of the right of residency (a “residency gap”, caused by applying for extension tardily, for example) causes the calculation of the legal residency period to start all over again.
Over the years, the sliding scale has become stricter. Foreign residents who have lived in the Netherlands less than three years may already be expelled when they have been sentenced to one-day imprisonment or two hours of community service.
When EU law is applicable, other criteria than the sliding scale apply. Often, it must be assessed whether one poses a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. This “EU public law test” will less likely lead to a withdrawal. This also applies to certain categories of Turkish citizens.
Obtaining Dutch citizenship
For obtaining Dutch citizenship, a criminal record will often pose a problem. A naturalization or “option” request will be denied if the applicant is subject to criminal prosecution or has been convicted and sentenced in the five years prior to submitting the request. The five-year period starts from the day on which the sentence has been fully executed.
The request can also be rejected if there are serious reasons to consider that a crime was committed for which a sanction can still be imposed.
Schengen visa and border control
Persons who have been convicted, prosecuted or who are suspected of a criminal offence, may be denied a Schengen visa or, for those who do not require a visa, entry into the Schengen zone. Those who become suspected of a crime during their visit may be expelled and receive a travel ban.
A travel ban will be recorded in the Schengen Information System, which shares and synchronizes information about travellers with member states. An alert will appear when they attempt to travel to the Schengen zone.
From 2021, the ETIAS system will be introduced. Similar to the system in the US, citizens of countries who can enter the EU zone visa-free will have to get pre-travel authorisation. It is likely that under this regime, third-country nationals including British citizens, who have been criminally convicted or are suspected of having committed a crime, will not receive approval to visit the EU.
In the Netherlands, the public prosecutor can dispose of minor criminal cases by imposing a sanction (strafbeschikking), such as a fine, a driving ban or community service. Suspects who accept the sanction admit their guilt. In this situation, the case is not brought before the court.
An example of a criminal offence which can be settled with a strafbeschikking by a fine is a violation of the current corona emergency restrictions. Although a minor offence, it is important to realise that any fine over 100 euros will show on a criminal record.
The “corona fine” may not only impact a residence application or a tourist visit, but also a future request for a statement of good conduct (VOG) when needed for a job application. The Dutch government recently announced that a corona fine can affect a VOG request after a second fine has been imposed. Some criminal lawyers have urged citizens to oppose the corona fine in order to have a criminal judge assess the legal basis.
The consequences of involvement with criminal law are often underestimated. It may lead to the refusal of Dutch citizenship, the rejection or termination of residency and a travel ban. In case you are criminally prosecuted, have been sentenced or convicted, it is recommended to assess at an early stage what impact this may have on your travel to and residency in the Netherlands.
For assistance with this and other immigration-related legal issues, please contact Everaert Advocaten at [email protected].
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AliMurtaza2 13:30 | 15 November 2020