• On 15 August 2019, at 9:30am, a multiple-judge panel of the immigration sector of the District Court of Amsterdam will hear an appeal filed on behalf of a British plaintiff by her attorney, Jeremy Bierbach: the plaintiff is a 27-year-old British citizen who moved to the Netherlands with her parents at a young age 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 the plaintiff was still living at home, she applied for and got an EU permanent residence document (duurzaam verblijf) 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 in December 2018 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.

      The plaintiff disputed the IND’s revocation in January 2019 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 hold an EU permanent residence document will be offered a national permanent residence permit at no charge. 

      If the court determines EU law to be unclear on the matter, it can make a preliminary reference to the Court of Justice of the European Union to ask for a 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 (to “move the center of one’s interests” to 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? Moreover, if the plaintiff has indeed not lost her right of permanent residence due to absence, does she still go on to lose that right in the event that she ceases to be an EU citizen because the UK withdraws from the European Union, as it is currently on track to do on 31 October 2019?

      In the last of two cases heard by the civil sector of the District Court of Amsterdam, in which a class of British plaintiffs in the Netherlands sued the Dutch state for protection of their rights after a potential Brexit, that sector of the court already ruled their claim to be inadmissible, reasoning (in par 4.4) that “it is the immigration court that is most suited to provide protection of the plantiffs’ rights [of travel and residence]”.