As of July 1, 2022, the IND has a new policy regarding residency gaps and late submissions of extension applications for residence permits. What this policy entailsis explained in this article by Everaert Advocaten.
Extension of your residence permit
Despite the current trend towards more automation in our daily life, foreign nationals do not have the luxury of having their residence permit extended automatically. To ensure the extension of your residence permit, an extension application must be filed with the Immigration and Naturalisation Service (IND). Extension can either be arranged by yourself or by your sponsor.
Foreign nationals with a residence permit for study, or work as a highly skilled migrant or as a researcher as described in EU Directive 2016 / 801 cannot file an extension application by themselves. Only the organisation sponsoring such a residence permit - the Recognised Sponsor - can apply for extension under these immigration categories.
Mind the gap
Even if you do not handle your own extension, it is important to make sure that your complete extension application is filed timely. Timely means: ultimately on the last day on which your residence permit is valid. In other words, the day prior to the date mentioned on your residency card. If it is possible, it is recommended to file an extension application three months before the expiry of your residence permit.
An extension application which is filed on or after the expiry date is considered a late extension application. Article 26 of the Aliens Act stipulates that an extended residence permit does not start earlier than the date of application for extension, unless the untimely submission of an application cannot be attributed to the foreign national.
If your residence permit expires or is about to expire and it is not extended in time, then you may incur a residence gap. Such a residence gap may cause significant problems later. As explained in this IamExpat article, one of the eligibility conditions for permanent residency in the Netherlands is that you must have been living in the Netherlands for five consecutive years with a valid residence permit. Incurring a residency gap during this period typically means that you will have to start over from scratch by having to accumulate the five years required for permanent residency once again.
This rule is even more strictly applied when IND decides on requests for naturalisation. A residency gap of even a day may therefore jeopardise your plans of becoming a Dutch citizen. Meeting the material requirements for the extension of your residence permit during this residency gap is no reason for the IND to deviate from the rule of having five years of continuous legal residency based on a residence permit directly prior to applying for naturalisation. This has been confirmed in a ruling issued on July 5, 2023, by our highest administrative court in immigration cases.
Policy shift leading to more leniency?
On July 1, 2022, IND’s new policy regarding residence gaps and the late submission of extension applications for residence permits became effective. What this new policy entails is explained using the following example:
Ana is from Mexico. Since March 1, 2018, she has had a temporary residence permit in the Netherlands to stay with her partner. Her residence permit is valid until March 1, 2023. Because Ana still meets the conditions of her residence permit, it can be extended by five years. Ana is very focused on completing her integration exams. After receiving her integration diploma, Ana will meet the conditions for a permanent residence permit. Applying for a permanent residence permit fits in with Ana's plans. She wants to settle in the Netherlands and is considering acquiring Dutch nationality as soon as she is eligible.
Due to all the exam stress, Ana forgets to submit her extension application before March 1, 2023. She only submits it on March 7, 2023. As a result, there is a six-day gap between the expiry of her previous residence permit and the filing date of her extension application.
Old policy
Under the old policy, the IND would grant Ana's application for an extension of her residence permit, but only from March 7, 2023 - the application date. The fact that she totally forgot to renew her residence permit in time can be attributed to her. As a result, a residence gap arises, which means that the period of five years after which Ana would be eligible for a permanent residence permit, starts again.
Ana's plan to become a Dutch citizen is also jeopardised because now she has not had a residence permit for five consecutive years before submitting her application for Dutch citizenship. There is a gap of six days during which she did not have a residence permit.
New policy
Under the new IND policy, the risk of getting a residence gap is reduced. The new policy stipulates that a residence permit extension will immediately follow on the expiration date of a residence permit, if the application is submitted no later than four weeks after the expiry date. It must be demonstrated within this period, that you meet the conditions for extending the residence permit.
Because Ana still meets the conditions of her partner permit, and her extension application was submitted only six days after the expiry of her permit, the IND will, under the new policy, extend Ana's residence permit with effect from March 1, 2023. A residence gap is prevented in this way and Ana’s application for permanent residence or Dutch citizenship is not at risk.
Filing late under new policy
What if - to still use our example - Ana filed her extension application only on April 7, 2023? If the extension application is filed more than four weeks after the expiration date of the residence permit, then the new policy rules state that the IND must give Ana the opportunity to prove that the late submission of her extension application cannot be attributed to her. Based on an assessment of the facts and circ*mstances of the case at hand, the IND must then decide if the late submission of the extension application may be attributed to Ana.
Are you worried you might have incurred a residence gap of less than four weeks and do you believe that no residence gap would have arisen under the new policy? Or do you think that you have a good reason for submitting your extension application not within four weeks after the expiry of your residence permit? Then please contact one of the lawyers at Everaert Advocaten for further information.
