When you part ways but intend to stay in the Netherlands
Going through a divorce or breakup can be stressful. Moving on brings many challenges. Maintaining the right to live and work in the Netherlands when you depend on your partner for your residence permit constitutes another critical issue that requires timely arrangements. Luckily, Everaert Advocaten is on hand to provide the advice you might need during this difficult time.
If your residence permit is tied to your relationship with your partner and the relationship has ended, you will no longer meet the main condition of your residence permit. This means your residence permit is no longer valid, even if its expiration date has not yet elapsed. As your sponsor for legal residency, your ex-partner has the obligation to inform the IND about changes to your situation (such as a breakup) within four weeks after they occur. The IND may then initiate proceedings to revoke your permit or determine that your legal residency has ended. When the IND is not notified, your permit can be revoked retroactively at any point in time when the IND discovers that you are no longer in a relationship.
If you want to continue to live in the Netherlands it is essential to explore the possibilities to keep your legal residency as soon as possible. This is also crucial to prevent a residency gap.
Keeping residency rights as the ex-partner of an EU citizen
If your partner is an EU citizen, your legal residency is regulated by EU law. Pursuant to the applicable EU rules you are permitted to retain your right of residence in the event of divorce or termination of your relationship if the marriage or relationship lasted at least three years, of which one year was spent in the Netherlands. Your right of residence, however, remains subject to the requirement that you have sufficient financial resources not to become a burden on the social benefits system. You also need to be covered for health expenses. You need to continue fulfilling these requirements until you have a permanent residence permit. You can only keep your residency rights if you notify the IND in time, i.e. before your ex-partner with EU nationality has left the Netherlands.
If you have custody over your minor Dutch or European children, if an agreement or court order grants you the right of access to your minor Dutch or European child, or if there are particularly difficult circumstances such as having been the victim of domestic violence, you may be able to keep your residency rights even if you do not meet the aforementioned requirements.
Continued legal residency as the ex-partner of a Dutch or non-EU citizen
When you are separating from a non-EU or Dutch partner, your legal residency is regulated by national immigration rules. Under those rules, you have the right to continue your legal stay in the Netherlands if you have had a residence permit to stay with your partner for five years and you have passed the civic integration exam.
In case of a combination of compelling reasons of a humanitarian nature because of which you are permanently dependent on residency in the Netherlands, you can possibly obtain the right of continued legal residency without meeting the main requirements. It depends completely on the facts and circumstances of the situation whether such an application will be successful.
For partners who break up with their Turkish spouse or partner who lives and works in the Netherlands, more favourable rules apply.
Switch to another residency purpose
If you are not entitled to keep your residency rights or to continue your legal residency, it is advisable to explore other residency options.
When you have (shared) custody over minor children who will continue to have a residency in the Netherlands or who have European or Dutch citizenship, it is possible to apply for residency to stay with your children. It depends on the facts and circumstances of your situation whether this will be successful.
Perhaps you have found a new life partner with whom you have a serious, exclusive relationship. You may then be able to apply for a residence permit to stay with your new partner. It is important that your relationship meets the general conditions of exclusivity, seriousness, and durability.
If you are working for a Dutch employer or if you are self-employed, you might be able to switch to a residence permit for work as a highly-skilled migrant or based on the EU Blue card Directive or if you can apply as an entrepreneur. For Americans, Japanese and Bolivian citizens who have their own company, it is certainly possible to apply for a residency as an entrepreneur.
Separating from your partner is never easy. Having to worry about your legal residency rights might be an extra burden on you in difficult times. However, not making the proper arrangements at the right time can have big consequences. Getting legal advice from a specialised immigration lawyer can help you to recognise the available options to keep your legal residency and move out of Heartbreak Hotel, towards an independent future.
If you have any questions or want to discuss your situation in more detail, please contact Lotte van Diepen at [email protected].
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