Retaining legal residency in the Netherlands after a separation or divorce
Article provided by Kroes Advocaten, an IN Amsterdam partner
End of relationship or marriage to a Dutch or non-EU citizen
If you have a residence permit to reside with your Dutch or non-EU partner, your residency is subject to Dutch national migration law. In this case, if you have had legal and continuous residency in the Netherlands for at least five years and have passed the civic integration exam, you may qualify for an independent residence permit (humanitarian non-temporary permit).
Family members of Turkish citizens
Foreign nationals (irrespective of their nationality) who have received a residence permit to reside with their Turkish partner or spouse who lives and works in the Netherlands enjoy more lenient requirements compared to partners of Dutch or non-EU citizens. They become eligible for an independent residence permit in case their relationship or marriage lasted at least three years. In addition, they do not have to take the integration exam.
End of relationship or marriage to an EU citizen
If you have a permit based on your relationship or marriage to an EU citizen (who has exercised their right to free movement within the EU), then your legal residency is regulated by EU law.
EU law states that if the relationship or marriage lasted a minimum of three years, of which you have spent at least one year residing together in the Netherlands, you will be allowed to keep your residence permit. However, this right to continued residency is still subject to certain requirements: for example, you must prove you have sufficient financial means to support yourself (to ensure you will not be reliant on the Dutch social benefit system), and you must have health insurance.
It is also important to note that in order to keep your residence permit as the former partner or spouse of an EU citizen, you must be able to demonstrate that you were already eligible for continued residency when your relationship or marriage ended. If your partner left the Netherlands prior to your break-up or divorce, you don’t qualify for continued residency.
End of relationship or marriage with joint children
If you have joint children from your relationship or marriage, there may be other options for you to continue your residency. Below you will find descriptions of three situations.
Joint children who are non-EU nationals
After the break-up or divorce, your partner permit will no longer be valid. The IND can therefore revoke it. As long as your ex-partner has legal residency in the Netherlands, your joint children will be allowed to stay with them.
In this scenario, if you have legal custody and a visitation schedule that demonstrates the frequency of your contact and your involvement in the upbringing of the children, there may be a possibility to apply for a residence permit on the grounds of article 8 of the European Convention of Human Rights (ECHR) – your right to respect for your private and family life. However, it should be noted that these permits are only granted in exceptional cases. If your right to family life could be exercised in a different country than the Netherlands, e.g. in your country of origin, the IND will likely reject the application. Other factors that determine whether you are eligible for this permit include the age of the children and your contribution to their upbringing. You must also be able to provide evidence of sufficient income to ensure you will not be reliant on the Dutch social benefit system.
Joint children who are non-Dutch EU citizens
If you have joint children who are EU nationals (but not Dutch citizens), who reside in the Netherlands and of whom you are the legal and caring parent, there may be an option to apply for a permit to reside with your children based on EU law. You must provide evidence that you have sufficient means of income to support yourself, that you have health insurance and that you are the caring parent of the children.
If the children attend school in the Netherlands and you have responsibility for them, you may be eligible for exemption from the income requirement.
Joint children who are Dutch citizens
If you are the legal and (main) caring parent of a Dutch child, it is possible to apply for a residence permit to stay with your Dutch child based on EU law (‘Chavez permit’). For this type of permit, it is important that you are able to demonstrate that there is a relationship of dependence between you and your Dutch child, meaning that the child would be forced to leave EU territory with you were you not granted the right to residency. You must demonstrate this relationship of dependency by providing proof that you are actively involved in the upbringing of the child and perform care duties. These duties cannot be of a marginal nature.
Switching to a work permit
If you have an employer, you may be able to switch to a highly skilled migrant permit or an EU Blue Card. This depends on certain criteria, such as your salary. If you are an entrepreneur, you may be able to apply for a permit to work as a self-employed person. For American and Japanese citizens who have their own business, more lenient conditions apply for a permit to work as a self-employed person.
Good to know: your residency pending your new application
If one of the above situations applies to you and you have applied for a new permit, then you are, in principle, allowed to stay in the Netherlands pending the application procedure. How long the procedure takes depends on the type of permit that you have applied for.
Act in good time
Navigating migration law is not easy, especially when going through a break-up or divorce. However, it is important to make timely and proper arrangements regarding your residency if you wish to remain in the Netherlands. Kroes Advocaten can help with navigating the available options to check if you are eligible for continued residency or a new permit.
