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    • 25 May 2020:

      I thought it might be a good time to summarize the current state of affairs (and respond to some frequently asked questions) with regard to Tozo (the income support available to all self-employed persons in the Netherlands) for holders of residence permits for the purpose of self-employment and for other non-permanent purposes, especially since if you do qualify, you have to apply for the first tranche (to get it retroactively as of March 1) before this coming June 1. As anyone who read my previous posting knows (which I am now only maintaining as a somewhat messy historical document of political developments), the State Secretary of Security and Justice, the member of government responsible for immigration policy, told Parliament that she is willing to make an exception and say that holders of a residence permit for the specific purpose of self-employment (i.e. if it specifically says “Arbeid als zelfstandige” in the first part of the small print on the back, i.e. as its defined purpose) will be allowed to apply for Tozo without it having any consequences for their right to stay here.

      • Q: Is there anything else we are waiting for?

      Yes, we are still waiting for this political commitment to be implemented in the State Secretary’s specific policy guidelines that the IND uses in its day-to-day operations, called the Vreemdelingencirculaire. This is undoubtedly being worked out by the IND’s policy department right now. We can expect some more specific details, including a possible answer to another question that members of parliament asked, which is whether Tozo money could also count toward a residence permit holder’s income requirement for renewing their residence permit.

      • Q: I’m a holder of a residence permit ‘arbeid als zelfstandige’. I called the IND and they told me I can’t apply for Tozo.

      It’s always important to remember that when you call the IND, you are getting someone in a call center who may be trying their best, but probably does not have a very in-depth knowledge of all possible fields of Dutch immigration law. That person certainly wouldn’t have been tracking the details of parliamentary debates and the like on this one specific issue. If they refer to any source, it would be the Vreemdelingencirculaire, which has not yet been updated. But rest assured, the State Secretary really is the boss of the IND, not the other way around. If she communicated this commitment, then it is legally enforceable, including in court (when you challenge a negative decision of the IND in court, the opposing party being represented by an IND lawyer is, in fact, “the State Secretary of Security and Justice”, and commitments that she made to Parliament do count as an actual policy decision).

      (Note! The IND has in fact updated their webpage on coronavirus and immigration — see under the header ‘Residence Permit – Work’ — to expressly say that applying for Tozo will not cause the holder to lose their residence permit. They do somewhat ominously say you have to report it to the IND if you claim Tozo, which is kind of true, but don’t let this intimidate you.)

      • Q: I have a “DAFT permit” (based on the Dutch-American Friendship Treaty) or I am Japanese and self-employed, can I apply for Tozo?

      Yes, if you read the back of your permit, you will see that it is just a residence permit for ‘arbeid als zelfstandige’ and it does not say anything specific about the Dutch-American Friendship Treaty or the Netherlands-Japan Trade Treaty. But the most important condition of your residence permit you have to continue to satisfy, at all times, is maintaining at least €4500.00 in equity in your business from your own resources. You should never think of that money as yours to spend or live off of when your business income declines: that is precisely what Tozo is for. So maintain your investment as best you can at the same time as you apply for Tozo.

      • Q: I have a residence permit for another purpose (that allows me to work in self-employment), and my income from self-employment has gone down due to the coronavirus crisis. Can I apply for Tozo?

      The State Secretary of Justice and Security has not expressly said anything about other purposes of stay.

      But since I have been getting a lot of questions about this, I can try to give you some rules of thumb to give you an idea of the factors I take into account when I tell someone if I think it’s OK or not (note! I am not accepting liability for any consequences of people drawing their own conclusions from this blog).

      First of all, it’s really important to know how to read your residence permit and know the purpose that it was granted for (which in the jargon of Dutch immigration law is actually called its ‘limitation’, which says a lot). Look at the back (here’s a link to a template of a residence permit card for a non-permanent purpose of stay) and read the fine print next to the header “BIJZONDERHEDEN”. The first clause ending with a period/full stop is the purpose of the residence permit: what is the main reason you are being allowed to stay here/the condition you have to satisfy? After that is a clause or two with the labor market endorsement: what kind of work are you allowed or not allowed to do? (Note, once more, that just because it says you can work in self-employment, that’s not the same as that being the purpose of your residence permit.) And finally, on almost all non-permanent residence permits there is almost always a clause warning you that making use of public benefits can have consequences for your right to stay. (Of course, now comes the analysis of whether that will be true in the case of claiming Tozo.)

      • Are you a non-EU citizen who is here on your own (i.e. your right to stay does not have to do with a family relationship) and one of the specific conditions of getting your residence permit was that you had to prove, even before you got your MVV or residence permit, that you already had sufficient financial resources from your home country to be able to support yourself during your stay? (I am most prominently thinking of a residence permit with the purpose “Study”, “Studie” on the back in the small print.) Then I would say, to be on the safe side: NO, don’t apply for Tozo, even if you have already been working in self-employment on the side of your studies and your business income has suffered due to the crisis, because applying for Tozo means you are admitting that you don’t already have enough resources to support yourself while you are studying. Yes, your residence permit does say that self-employment is allowed (Arbeid als zelfstandige toegestaan), but the reason for allowing students to do that (similar to the reason they are allowed to have an extremely marginal part-time job) is not primarily to allow them to earn their way through their studies, but more to allow them to earn a little pocket money and gain entrepreneurial experience that can help them in possibly continuing to stay in the Netherlands after graduation by applying for a residence permit for the purpose of self-employment.

      • Note that non-EU citizens who have a residence permit as scientific researchers (“Wetenschappelijk onderzoeker/Richtlijn 2016/801”, typically PhD candidates or postdocs), if they don’t already have a paid fellowship, are different than students (note that in the Netherlands, doing a PhD is not “study”, but “research”). They have the right to work wherever they want (Arbeid vrij toegestaan), including in self-employment, and this freedom to work is specifically conceived of as helping them earn enough to get by while they are doing their research in the context of their hosting agreement with a Dutch university.  Nevertheless, I’d be careful claiming Tozo, precisely because you do have that freedom to work (i.e. by contrast to holders of a residence permit for self-employment, who are generally not allowed to do any other kind of paid work, no one is forcing you to earn your income through self-employment), unless your self-employed activities have some kind of critical connection to your research, e.g., you are running a promising startup or consultancy based specifically on your research, and your drop in revenues due to the coronavirus crisis have had a negative effect on your ability to effectively do your research. (For that matter, I would also say that holders of a residence permit for an “orientation year” or zoekjaar after graduation from a Dutch or top world university should also be very cautious about claiming Tozo.)

      • Do you have a residence permit for stay as the family member of someone who is Dutch or who otherwise has an unconditional right of residence in the Netherlands? (Note that if you’re staying as the family member of an EU citizen from any other country in the EU, that’s a different legal system to Dutch immigration law with its requirements of “sufficient resources”, to which this other posting of mine applies.) Then of course, you are acutely aware that you and your family member (usually your partner or spouse) had to jump through hoops to prove that your family member, or both of you together, had sufficient income or other resources. However, by contrast to, say, people with a residence permit for “study”, having those sufficient resources does not necessarily constitute the core aspect of why you are being allowed to stay. The core aspect of why you are being allowed to stay is because it’s your family member’s human right (article 8, European Convention on Human Rights) to have you here with them. Yes, they had to make a plausible case in getting you your residence permit that they, or both of you together, would always be earning enough to support yourselves, but there is still some forgiveness built into the system. The key question to be answered when you ask yourself if you or they should be allowed to apply for Tozo is: would it be a disproportionate penalty and/or a violation of your family member’s human rights to kick you out of the country for you or your family member claiming Tozo? If, looking at the long-term financial picture of you and your family member, you can say that your drop in self-employed income that made you claim Tozo was temporary, necessary and really beyond your control, due to the crisis, then I would say you shouldn’t worry about it too much.

       

      Jeremy Bierbach, attorney at Franssen Advocaten