On 31 January 2019, at 4pm, the District Court of Amsterdam will hear a case brought by attorney Jeremy Bierbach on behalf of a client: she is a 27-year-old British citizen who moved to the Netherlands with her parents at the age of 2 and grew up there.
EU legislation (Directive 2004/38) provides that any EU citizen living in a host member state automatically obtains a right of permanent residence after legally living there for five years, so while she was still living at home, she applied for and got an EU permanent residence document (duurzaamverblijf) from the Dutch immigration authority (IND).
She then moved to the UK to go to university and get her PhD, and now has a position as a researcher at a British university. Her parents still live in the Netherlands, and she comes to visit them and her friends in the Netherlands quite frequently.
However, when the IND noticed that she had not been registered at a Dutch address for over two years, it moved to revoke her right of permanent residence in the Netherlands, citing the provision of EU law that says that the permanent residence status can be lost after two years of “absence” from a host member state.
She disputed the IND’s revocation by providing proof, in the form of plane and ferry tickets, that she has been anything but absent from the Netherlands for two years: she is quite frequently present there.
Meanwhile, the Dutch government announced that in the event of a no-deal Brexit, all British citizens in the Netherlands who have an EU permanent residence document will be offered a national permanent residence permit at no charge. With the distinct possibility of a no-deal Brexit on 29 March looming, her attorney filed a petition for preliminary relief at the District Court of Amsterdam, since she has to know whether she will need to quit her job in the UK by that date (at great cost to her academic career) to move back to the Netherlands and re-establish a right to live there that is not dependent on sponsorship by an employer.
The petition, which will be heard by the court in a public hearing on 31 January, asks the court to make a preliminary reference to the Court of Justice of the European Union to ask for an accelerated ruling on the proper interpretation of Article 16(4) of Directive 2004/38, which provides that a right of permanent residence can only be lost by two years’ uninterrupted absence. Is a mere visit to the Netherlands enough to interrupt this absence, or is it necessary to actually come back to live in the Netherlands within two years of moving away, as the State Secretary of Justice and Security, the government minister in charge of the IND holds?