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    • Can residence permit holders apply for the coronavirus support (“Tozo”) for ZZPers?

      23/03/2020 | Immigration Law News
    • LATEST UPDATE: Friday evening, 27 March

      The two most important things to know (also in response to many of the questions and responses I have received this week):

      • The Tozo (Tijdelijke overbruggingsregeling zelfstandig ondernemers), as the regulation for coronavirus support for ZZPers will be called, has not yet actually been enacted as a regulation. So nothing is set in stone yet– the only new information we have so far (as of the end of the afternoon) is the government’s more specific announcements as to what the details of the Tozo will be, which still do not address the issues for immigrants that I outlined in my original post (below).
      • There is no rush to apply! When the Tozo is enacted, anyone who applies anytime before 31 May 2020 will get the full benefit (if they qualify) retroactively as of 1 March. Yes, there is the possibility that ZZPers who are in immediate need can already apply to their municipality, and the municipality will grant them an advance on the benefit, but if you are a residence permit holder for a non-temporary purpose (verblijfsvergunning regulier voor bepaalde tijd), do not rush to do this until the issues below are addressed. The expectation is that these issues are one of the things that will be worked out between the responsible minister and the responsible committees in parliament (whose job it is to provide the government with criticism and suggestions) in their sessions next week.

      —-

      My law firm has been getting many phone calls and emails from self-employed non-EU citizens who are wondering whether they qualify for the special financial support that the Dutch government announced last week for freelancers (or so-called self-employed persons without employees, “ZZPers”), or whether they can receive this benefit without putting their immigration status in danger.

      This answer is for non-EU citizens who have residence permits for the specific purpose of working in self-employment (look at the back of your residence permit, which is always the most important part: it would say “Arbeid als zelfstandige”), or non-EU citizens who have residence permits for the specific purpose of staying with a family member who has the aforementioned type of residence permit.

      (If you are American, you might call your residence permit for self-employment a “DAFT” residence permit, since it was granted on the basis of the Dutch-American Friendship Treaty; if you are Japanese, you might have this type of residence permit granted on the basis of the Netherlands-Japan Trade Treaty; and if you are an artist, you might call this an “artist visa”. In all of these cases, it is still essentially the same type of residence permit and will say “Arbeid als zelfstandige” on the back.)

      The only safe answer, for the time being, is that it could be considered to be a violation of the requirement of Dutch immigration law that you are obliged at all times, as a non-EU citizen immigrant with a conditional right of stay (i.e. any type of residence permit that is not a permanent residence permit) in the Netherlands, to have sufficient, independently earned financial means to support yourself and your family without making use of public assistance (NOTE!! it cannot be repeated enough that non-EU citizens are ALWAYS allowed to claim unemployment insurance [WW], if they qualify for it, and healthcare, rent and childcare supplements [zorgtoeslag, huurtoeslag, kinderopvangtoeslag], as these are not considered to be need-based, non-contributory benefits.)  The type of public assistance that is usually not allowed, and can be considered a sign that you no longer have enough independent means to support yourself, is need-based, non-contributory benefits (i.e. you are having trouble feeding yourself and your family with the money you are earning, so you need to ask your municipality for assistance). The coronavirus support measures are being implemented in the context of the Bbz or Besluit bijstandsverlening zelfstandigen, which like the Participatiewet , is considered to be a need-based, non-contributory benefit.

      The coronavirus support measures are indeed due to special circumstances that affect everybody, but please wait before claiming this benefit. We will only know for sure whether you can claim it once the State Secretary of Justice and Security, the member of government who is the political head of the IND, has established policy guidelines in the Vreemdelingencirculaire, the immigration policy handbook — last week, I made a posting on Twitter asking the IND when the State Secretary would be establishing this policy. Note that the IND itself, which is only an apparatus of civil servants whose job it is to carry out the government’s immigration policies, will not itself be able to independently decide or determine whether claiming coronavirus support is allowed. There is no one there who you can call on the phone at the IND who has the authority to be able to tell you this. Note, as well, that you should not necessarily trust anyone at your municipality to know the answer to this either: civil servants there may err on the side of encouraging you to apply for the support, without fully understanding what the immigration law consequences are. 

      What I personally believe that the policy should determine is the following:

      • Claiming the support will not be ipso facto seen as a sign of having insufficient financial means
      • And, more importantly, for holders of residence permits for self-employment who have an income requirement,* i.e. of always having an average monthly profit from business of at least €1250.12 (if you are single) or €1785.89 (if you have a dependent partner, although your partner’s income can also count toward this), I think it would be the decent thing to do to establish a policy saying that the coronavirus support can be considered to count toward this income requirement, despite not being an independently earned source of income.

      (* Note that if your residence permit is based on the DAFT or the Netherlands-Japan Trade Treaty, you do not have an income requirement as such, only an obligation to maintain €4500.00 of equity in your business and for your business to actually have a reasonable amount of financial activity to show in terms of revenues and expenses for business development.)

      But again, for the time being, please wait. I will post updates at this location as they become available.

       

      Jeremy Bierbach, attorney at Franssen Advocaten specialized in Dutch immigration law