Here’s what our attorney emailed me today.:
Here is what I’ve found on the Netherlands — and my analysis after speaking with both the Dutch consulate and a lawyer in the Netherlands who specialized in these types of cases. I have sent this to Luke as well (Corrlinks gave me some problems given the length of the email, but I think Luke should have it by now).
Dutch immigration law has been changed several times. The Act defines the right of admission to the Netherlands, the different types of permits and procedures for decision making. It, however, is not the only source of immigration law in the Netherlands. For instance, the rules of entry by way of a visa are laid down in a separate law. Furthermore, a lot of important rules are laid down in secondary legislation, referred to in the Aliens Act and mainly sets out formal procedural issues. There is also a separate law, which sets out the rules applying to third country nationals wishing to stay in the Netherlands for purposes of employment.
Third country nationals who are not EU/EEA nationals and who wish to enter the Netherlands, need in principle a visa, which is valid for a maximum of three months. United States citizens do not need a visa to enter the Netherlands for a stay less than six months. Third country nationals who wish to stay longer than three months have to apply for an authorization for temporary stay (MVV). Not everybody requires a MVV to apply for a residency permit. Nationals of the following countries do not need a MVV; Australia, Austria, Belgium, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, New Zealand, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, the United Kingdom of Great Britain and Northern Ireland, the United States of America and the Vatican City.
Schengen area – what is it and how does it work?
The Netherlands is a signatory to the Schengen Agreement, which enables free circulation of residents within countries in the Schengen Area. A visa granted by one of these countries (for example, the Netherlands) is valid in the whole Schengen Area. Travelling within the Schengen Area is legally the same as travelling within the Netherlands. If you enter the Netherlands with a tourist visa, you will be able to stay in the Netherlands and/or any other country in the Schengen Area for up to 90 days during any 6-month period.
In addition to the Netherlands, the other parties to the Schengen Agreement are: Austria, Belgium, Denmark, France, Finland, Germany, Greece, Iceland, Italy, Luxembourg, Norway, Portugal, Spain and Sweden.
Although you can leave the Schengen Area and come back in as many times as you need during its 6-month validity, the total amount of time you can stay in the Schengen area cannot exceed 90 days. A visa granted by one of the Schengen countries is valid in all other member countries. Countries outside the Schengen Area include Switzerland, United Kingdom & the Channel Islands, Ireland, Morocco, and Gibraltar. Applications have to be submitted to the Dutch Embassy in the country of origin or residence. The Minister of Foreign Affairs is in charge of issuing visas and MVV’s 73 for which there is a specialized visa service.
If you are not a national (or family member of a national) of Switzerland, a European Union (EU) country or a EuroZone (EER) country, you will need a long-term residence permit to reside in the Netherlands for more than three months. The first step is to obtain a provisional residence permit at a Netherlands embassy or consulate overseas. This will allow you to enter the Netherlands, after which point you will need to apply for a long-term residence permit at the Dutch immigration service. The success of your application and the length of stay granted will depend on your reason for seeking residence (work, study and family reunion are examples of permissible reasons). The best way to get permission to stay in the Netherlands for several years is to obtain a long-term skilled or professional job, or marry a Dutch citizen.
Benefits of Residence
As a resident of the Netherlands you may live and work in the Netherlands (depending on the conditions of your residence permit). You may also freely travel to most EU countries for the entire duration of your residence permit as there are no customs barriers throughout most of EU. Finally, you may eventually become eligible to apply for Dutch citizenship.
In order to obtain Dutch citizenship, you must be at least 18 years old; have continuously resided in the Netherlands for the past five years for a non-temporary reason (study is considered a temporary reason); pass an examination proving your competency in the Dutch language; and have maintained a clean criminal record for the past four years. Other restrictions may apply in certain cases, such as past terrorist activity. You may also be required to renounce your original nationality (numerous exceptions apply to this requirement).
Benefits of Dutch Citizenship
As a Dutch citizen you will be able to obtain both Dutch and EU passports. You will be able to live and work freely in the Netherlands for the rest of your life, and you may travel, live and work anywhere within the EU. You will also be able to vote in Dutch elections.
EMPLOYMENT IN THE NETHERLANDS
A third country national who wishes to work for an employer in the Netherlands needs a residence permit and a work permit. To qualify for a residence permit, the third country national needs to hold a MVV89 for the purposes of paid employment. During the application procedures for the MVV it will be determined whether the third country national meets the requirements for residence in the Netherlands. In principle, the criteria for admission to the Netherlands are threefold:
1. International obligations as mentioned in treaties or agreements90
2. Essential interests of the Netherlands, for example business men or employees with particular expertise
3. Humanitarian criteria such as family reunions.
Apart from international obligations, a residence permit issued for the purposes of paid employment or self-employed activity will be granted only if the proposed activity matches the specific national essential interests. The decision to grant or refuse a residence permit will be delayed until the decision on the work permit application has been made. In the meantime the Aliens Police will, however, check whether the applicant complies with the regular requirements for admission. These requirements are as follows:
· The residence of the applicant is not considered to be a risk to public order or national security
· The applicant has proof of sufficient means to support himself
· The applicant will have decent housing
· The applicant has not breached any procedural rules such as entering the Netherlands without a MVV
The applicant will only be granted a residence permit if DOO of these requirements are met. In the case of the residence permit application being refused, the work permit application will consequently be refused. The law also defines the obligations for the employer. An employer in the Netherlands has to apply for a work permit at the Regional Manpower Board, which advises the Central Manpower Services Board.
However the main potential obstacle to a non-EU/EEA national obtaining a work permit lies in the condition that there must be no qualified personnel available on the Dutch or EU/EEA labor market able to fulfill the vacancy. Other conditions to be met include:
· The vacancy has to be filed at the Regional Manpower Board and at the EURES-network, at least five weeks before the application for a work permit is filed;
· The salary will meet the minimum standards;
· The work does not consist of sexual dealings/activities with/for third parties.
Additional criteria for refusing a work permit are mentioned in article 9 of the Act, e.g. conditions of employment, age of applicant, proof of sufficient efforts to find personnel on the
When all the above mentioned requirements are met, a work permit will be granted for the purposes of paid employment. A residence permit will be issued for the purposes of paid employment. Additionally, the third country national must undergo a tuberculosis test.
The residence permit will be issued for a maximum of one year, but will be extended for as long as the third country national holds a work permit. If the work permit has been granted for less than one year, the residence permit will be issued for the same period of time.
After three years in possession of a residence permit for the purpose of paid employment, third country nationals may request the right to free movement, which allows them to accept any paid employment without having to apply for a work permit.
Self-employed third country nationals do not need a work permit.
A third country national, who wishes to establish residence in the Netherlands for the purposes of self-employed economic activity, needs a residence permit. The main criterion for admission to the Netherlands in this case is that the activity has to match the essential interests of the country. These interests do not have to be purely economic: cultural and other sorts of interests may be involved. Professionals (such as doctors or lawyers), who wish to work in the Netherlands, need to prove that they are qualified by Dutch standards and that there is a demand, which cannot be met by the internal market.
A third country national, who wishes to start a business, has to prove that his/her business activity is clearly innovative and that the business will not hamper competition in any way. The Ministry of Economic Affairs advises the Immigration and Naturalization Service on these criteria. The third country national is required to register at the Chamber of Commerce and provide evidence of the profits of the business (in case of a start-up there has to be a business plan). Information on the contribution to innovation of the product or company has to be provided and contracts with Dutch companies have to be shown.
The main rules for the admission of self-employed applicants are set out below:
· The normal requirements for obtaining a residence permit have to be met – such as proof of the means to support oneself and that the applicant does not pose a risk to public order.
· The maximum age to obtain a residence permit for the purposes of self-employed economic activity is 60 years.
· The residence permit will be issued, provided that the applicant enrolls in a health insurance scheme and undergoes a tuberculosis test.
When a third country national has held a residence permit for the purpose of paid employment for a period of three years, he or she may require the right to free movement, which allows him or her to accept any paid employment without having to apply for a work permit.
The third country national is entitled to receive a permanent residence permit after five years as a residence permit holder. The applicant should show evidence of sufficient means to support him/herself and should not present a risk to public order. The applicant will have to receive a long-term income for at least one more year and a main residence in the Netherlands for 5 consecutive years prior to the application to qualify for a permanent residence permit. In cases in which the applicant has seriously violated the public order or if he/she constitutes a threat to national security, the authorities may reject the application. If all requirements are fulfilled, the permanent residence permit will be granted for an indefinite period. The holder of a permanent residence permit does not require a work permit in case of employment.
Unemployment affects the right to residence depending on the status of residence. It does not affect the legal status of holders of a permanent residence permit.
Residency permit requirements
In order to qualify for a residency permit you will need to fulfill certain requirements. These requirements depend on the motivation of your stay: work, education, family, etc. The IND (Immigratie- en Naturalisatiedienst) will decide whether you fulfill the necessary requirements and if you are in possession of the correct documents. There are various requirements which you will always need to meet. You will always need to be in the possession of a valid passport. To obtain a residence permit you will further need to undergo a tuberculosis test and have a valid health insurance.
If you are not sure whether you fulfil the necessary requirements for a residency permit you can contact the IND by telephone by calling +31 20 889 30 45 or through their website www.ind.nl.
When you have enough information, and you are in possession of all the required documents you can ask for the application form at the local municipal office. Here you will also have to pay a certain fee. To apply for a residence permit you are required:
· To have a valid passport
· Not to have a criminal record
· Not to be a danger for the public and/or national safety
· To have sufficient monetary funds to finance (for example an income through labor or a financial sponsor) your stay in the Netherlands
· To undergo a tuberculosis test
· To have health insurance to cover any medical costs in the Netherlands
It is possible that the reason for your stay in the Netherlands obliges you to fulfil additional requirements. You should check this thoroughly on the website of the IND: www.ind.nl .
If you are coming to the Netherlands on academic grounds you can find more information on www.nuffic.nl.
Where and how to apply for your residence permit
Once you are in the Netherlands, if you do not need a MVV or you are in possession of a MVV, you can apply for a residence permit at the local municipal office (Gemeentehuis).
The municipality will send your application to the IND who will examine your submission. When the IND makes a decision to grant a residence permit they send a message to the municipal office and you will be able to collect it there. If the IND rejects your application you will receive a personal letter at your home address. If you are not granted the residency permit you have four weeks to appeal against the decision.
By law, the IND has 6 months to make their decision but in most cases this process will not take this amount of time. If you require a MVV and you are not in the possession of this document, you should go to one of the IND offices in either Hoofddorp or Rijswijk in order to apply for a residence permit. Keep in mind that when a MVV is required you always have to try to obtain one. If you do not do this you could be handed over to the Foreign Police (Vreemdelingenpolitie).
Therefore, to get to the Netherlands, Luke would only need to present his U.S. passport, and then once Luke gets to the Netherlands, he will need to apply within the first three months for residency.
I see two main options for Luke. One, he can pursue studies at a university in the Netherlands. This would likely be the easier option for him, and allows him to extend his stays for longer periods of time. We could make this application prior to his departure, and then he would renew while he is in the Netherlands and remains in school.
The second option is for Luke to work in the Netherlands, and have an employer sponsor him. Absent Luke finding a job before he leaves the U.S., he could go to the Netherlands on the visa (as described above), possibly having set up job interviews for while he is there, and then once he is hired and physically present in the Netherlands, they can complete the applications for residency.
This option also includes the possibility of Luke opening a business in the Netherlands, being self-employed. If he goes this route, it is much more complex, and requires extensive showings to the government, as well as the process of setting up a business in the Netherlands (permits, licenses, etc.). I only mention this here as a worst case scenario, should Luke be unable to find work. We would likely need to consult with local (Netherlands) counsel if Luke decided to open a business in the Netherlands.
Last Thoughts re: Criminal History
On the form itself, it asks about criminal history (convictions, terms of imprisonment, etc.). It requests that the person provide an explanation of this criminal history. So it’s all up to whether they consider the criminal record to constitute a threat to public policy.
In EU law, ‘threat to public policy’ can generally only be assumed if it was something really serious: crimes against humanity, murder, rape, or hard-drug trafficking.
In practice though, will they ask at the border? No, they won’t. They aren’t yet having citizens of visa-free countries fill in the type of questionnaires that the US has foreigners fill in to get their visa waiver. So not telling them can’t really be considered lying.
When someone applies for a long-term residence permit in the Netherlands, though, they do ask, and lying (if they find out about it) is punishable by revocation of the residence permit later on. They don’t care so much about the felony/misdemeanor distinction that US criminal law makes: what they do, if you admit to having a criminal record, is translate the specific crime into Dutch criminal law to decide how serious they think it is.
In Dutch immigration law, a conviction in a foreign court of something that could be considered equivalent to a midriff (the more serious class of offenses in Dutch criminal law, analogous to a felony) is a bar to being able to get a residence permit for a non-family-related purpose. The question is how long the bar stands. Your offense would translate to art. 240b of the Criminal Code, paragraph 1 (which is the less serious form: simple, non-systematic possession of child pornography)– for that the maximum prison sentence in the Netherlands is four years. That means that the maximum length of time that you can be denied legal residence is five years, starting on the day that the foreign conviction became irrevocable and you were already in detention. (If it had been a violent offense, it would be 10 years– if it had been an offense for which a maximum prison sentence was 6 years or more, it would be 20 years.)
Nevertheless, it would be a fight, even in such a cut-and-dried case as this, if you tried to go to the Netherlands more than 5 years after the date of conviction. Especially that, according to those in the Netherlands, there has been something of a mass hysteria about crimes involving children ever since a big scandal broke regarding one particular ring. Lawyer indicate that the government would of course try its hardest, for political reasons, to deny your residence. The relevant offenses in Florida criminal law and Dutch criminal law don’t exactly line up, so there may be an argument as to whether or not you would be prosecuted in the Netherlands.
If you immigrates for family-related reasons, i.e. to be here in a pre-existing relationship with a Dutch citizen, that would be an extenuating circumstance in the considerations. And if you came here for a relationship or marriage with a citizen of another EU country who was living in the Netherlands (say, a Polish or Spanish or British citizen living in the Netherlands), then you could not at all be denied residence for a criminal record like that. This is because of the fact that that situation falls under EU law, and EU law maintains an extremely high standard for what can reasonably be considered a threat to public safety on the part of EU citizens or their family members– it roughly has to do with safeguarding the unimpeded freedom of movement of EU citizens.
As a side note, and as something far into the future, Dutch citizenship does not require that a person not have any criminal convictions – it only requires that a person has not been convicted of any criminal offenses in the four years preceding the application. Note – citizenship and residency are two separate steps in the process. As Luke does not have any availability possibilities for a direct line to Dutch citizenship (family members, etc.), the first step will be for him to obtain residency in the Netherlands. Further, at the residency stage, Luke will not have to make the difficult decision of giving up his U.S. citizenship, something that I rarely, if ever, will counsel a client to do. This will give him some time before he has to make that decision, as once you renounce your U.S. citizenship, it is very difficult, if not impossible, to ever get it back. Further, if Luke wants to travel back to the U.S. at any point, absent maintaining his U.S. citizenship, his felony conviction will be a bar to entry into the U.S., absent waivers or other relief. Therefore, I would strongly recommend that, at least for the first few years, that Luke maintain his U.S. citizenship, obtain residency in another country, and then make the other decisions a few years down the road.
So we have some things to think about. I have made good contacts with both the Netherlands consulates in the US, as well as a very good attorney in the Netherlands who handles these types of cases. So we have some good resources for when we start to move forward. I will start looking into Japan as well – I apologize that I did not know until Luke’s email that this was an option.
Sara Elizabeth Dill
Law Offices of Sara Elizabeth Dill
35 East Wacker Drive
Chicago, Illinois 60601
T: (312) 564-5670
F: (312) 376-3791