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    • Understanding the (COVID-19-related) ban on non-essential travel to the Netherlands, who is exempt, and if a lawyer can help

    • Understanding the Schengen Area

      The first thing that is important to understand is that if you are entering the Netherlands by air or by sea from outside Europe, you are also entering the Schengen Area (all the green or light green countries on this map):

      (credit: European Commission website)

      Internal to the Schengen Area, there are supposed to be no systematic border controls, whether by land, sea or air. (All airports in the Schengen Area are physically divided into at least two terminals, you’ll see: one terminal for flights to and from Schengen countries, where you go directly to the gate after you go through security or you go directly to the baggage claim after landing, without a passport control; and one terminal for flights to and from destinations outside the Schengen Area, where before you go to the gate and after you land at a gate, you have to go past a passport control with actual border guards who are checking to see, if you are a non-EEA citizen, what the nature of your right to be in the Schengen Area is or was.)

      Therefore, the goal of the EU, most of whose members make up most the Schengen Area, is to make sure that there are as few border controls as possible inside the Schengen Area. This also means that if any restrictions are imposed on who can enter the Schengen Area from outside (and here is a link to the most current version, as of 14 July, of the restrictions recommended by the EU: https://data.consilium.europa.eu/doc/document/ST-9208-2020-INIT/en/pdf ) , those restrictions have to be applied as uniformly as possible by all of the member states.  So save yourself the trouble of trying to find the country in the Schengen Area that you think may let you in, when all of the rest won’t; because you can be sure that if that country started letting in too many non-essential travelers from non-EU countries that are not yet on the “green list”, it would render the system ineffective — other countries in the Schengen Area might have to start sealing their land/sea borders to that country and redirecting flights from that country to a terminal where there is an entry control in order to keep out the non-essential travelers from countries where COVID-19 is not yet under control.

      Yes, this entry ban is an incredibly blunt instrument that may not always make actual, epidemiological sense — I have been inundated with questions from people coming from a country that is not on the green list, but who insist that they can provide all kinds of paperwork proving that they have been quarantined and/or that they don’t have COVID-19, or who don’t understand why EU citizens, when they are coming from the same countries, will be admitted. Save your breath, because it is of no use to debate this with border guards or airlines– the point of the restrictions is specifically to more or less blindly restrict the flow of travel from certain countries, and the point of the exemptions is that they have to be based on certain objective criteria that are quick and easy for border guards to check, without too much examination or discussion. Dura lex, sed lex.

      And what about the Netherlands?

      What I can tell you from personal experience so far is that even if there is any possible variation at all in the application of the restrictions recommended by the EU, the border guards of the Netherlands (the Koninklijke Marechaussee, e.g. at Schiphol Airport) are using the strictest possible reading of those recommendations.

      This means that as a non-EU citizen* (* Note that until the end of 2020, British citizens are still seen as equivalent to EU citizens; for that matter, citizens of the EEA– Liechtenstein, Norway and Iceland– plus citizens of Switzerland and all the micro-states surrounded by the EU– are equivalent to EU citizens) coming from a country that is not on the green list, you will be considered a non-essential traveler, and therefore barred entry at Schiphol airport, if you do not belong to one of the following categories:

      • Holder of a valid Dutch residence permit (our term for a long-term visa), for any purpose of stay, in the form of a credit-card sized plastic card:
      • Holder of a valid residence permit from another Schengen country (which will probably be in a comparable format)
      • If you are not in the possession of a card like this, then the only circumstances under which you will definitely be admitted are if you belong to one of the following categories of immigrants for whom the Dutch government has already approved you for a residence permit (with either an approval decision or by issuing you an ‘MVV’, a type-D Schengen visa at a Dutch embassy or consulate):
        • Long-term stay as the immediate family member of a Dutch citizen
        • Following a full-time course of study that you have enrolled in at a Dutch higher education institution
        • Working as a so-called “high-skilled migrant” (NOTE! this term — kennismigrant in Dutch — has a specific meaning in Dutch immigration law, it’s not enough for you to just say that you are “high-skilled”: it means that a Dutch employer that you do not own a controlling interest in has hired you for a certain — typically very high — salary and applied for your right to stay in the Netherlands for the specific purpose of that job), AND your employer has issued a statement saying that you have to be in the Netherlands to perform your duties as an employee.

      Note that all of these categories are strictly defined in terms of you actually having a valid residence permit card, or you having actually been approved for one of the specific categories of a residence permit.  There is no wiggle room here, no other kind of status that is considered “close enough” (for instance, if you have applied for or been approved for a right to stay in the Netherlands for self-employment, i.e. on the basis of having or starting your own business [such as with the Dutch-American Friendship Treaty], that’s still not considered to be analogous to any of the categories above).

      • Finally, there is one category of non-EU citizens who do not necessarily need to be in the possession of a valid residence permit, and do not need to have already expressly been granted a right to stay in the Netherlands or in another Schengen country: family members of EU citizens. 
        • Huh? Aren’t Dutch citizens EU citizens? Yes, they are, of course. But this has to do with one phenomenon that results in a very inconsistent application of EU law, and that is that EU law, when it comes to granting automatic rights of entry and residence to family members of EU citizens, only applies when an EU citizen is living in a different member state of the EU than the one that they have the nationality of (making use of their “freedom of movement”, as it’s called).
        • The Netherlands chooses to make things harder on its own citizens: their immediate family members (spouse/partner and children under 18) can only get a right to stay here (and therefore, also, a right to enter during the entry ban) if the Dutch government has specifically approved their application for a residence permit, for which they undoubtedly had to satisfy all kinds of conditions like income, passing a basic integration exam, etc. This is called “reverse discrimination” (by reference to the ban on discrimination based on nationality in EU law), and it something that EU law silently permits.
        • On the other hand, if you are the immediate family member (for instance, [step]child under 21, spouse, partner in a civil union, or partner in a long-term relationship**) of an EU citizen of any other nationality who is genuinely residing and doing something (working, studying, or being self-supporting) in the Netherlands, then the Netherlands has to admit you to the Schengen Area if you are able to document the family relationship with an official certificate and what the EU citizen is doing in the Netherlands.
          (** as to a long-term relationship, the Dutch government is saying that they will only accept proof, in the form of sealed notarial certificates, of having bought a home together or having lived at a common address officially for longer than 6 months, which the courts have ruled is too restrictive)

      Q: I’m allowed to fly to Sint Maarten, Aruba, or Curaçao as a tourist. That’s Dutch territory, isn’t it?

      Sint Maarten, Aruba, and Curaçao are part of the Kingdom of the Netherlands, but they are autonomous countries with their own parliaments, governments, and immigration rules, and they have independently decided to allow visitors. They are not part of the EU and not part of the Schengen Area, so travelers flying to the European Netherlands from there who are not EU citizens would still have to go through a border control on landing (that is, if they are even allowed to board a flight in the first place) and to the entry restrictions.

      Can a lawyer help you?

      I wrote this blog entry to make clear (in response to many inquiries) that it may be less hopeful than you think in most cases– definitely in most cases where your only reason to want to be in the Netherlands is because it is purely of your own desire to be here or to move here, with no pre-existing “essential” connection to a person or entity here that has been, or will be, recognized by the Dutch government; or if you are not an immediate, i.e. nuclear family member (for instance, if you are coming to visit your adult child, or your brother, sister, aunt, uncle, young grandchildren, etc.). Even with all the money in the world and a private jet, you probably won’t get in.

      However, there are certain marginal cases that I am interested in representing people in, where it may be fruitful for me to try to get a green light for you from the Dutch immigration authority for your entry, or to try to fight a denial of entry at the airport in court:

      • You are the partner in a long-term relationship with an EU citizen (not Dutch) living in the Netherlands, but you don’t have official proof with a notarial seal of contracting a relationship, owning a home or living together with that EU citizen for longer than six months;
      • You are an immediate family member of a Dutch citizen who also has the nationality of another EU member state, as this can bring your case into the realm of applicability of EU law, where you don’t need express permission from the Dutch government;
      • You are the caretaking parent of a young child with Dutch citizenship who is very dependent on you; this also brings your case into the realm of applicability of EU law; or,
      • You don’t currently have a valid residence permit card, and don’t belong to one of the “essential” categories of immigration statuses, but you do have some kind of immigration status in the Netherlands (like waiting for a decision on a renewal application when you already previously had a valid residence permit, and your purpose of stay relates to being in the Netherlands as someone’s family member).

      I am also interested in fighting potential refusals based on the definition of “residing” in a country that is on the green list, which you are traveling from but do not possess the nationality of.  The Dutch government so far is reading this term strictly, in that it has to be a country in which you have a home and possibly a right of long-term stay, but I would argue that if you can show that you were physically present there since the beginning of the pandemic, you should also be exempted.

      Jeremy Bierbach, immigration attorney at Franssen Advocaten