Important EU Court ruling on the concept ‘absence’ of territory of the EU and the Netherlands regarding the EU long-term residence permit

On 20 January 2022, the European Court of Justice made a very important and far-reaching ruling regarding the EU long-term resident residence permit (C-432/20).

In the EU Directive on longterm residents (2003/109/EC) it is determined that the EU long-term resident residence permit of a foreigner can be revoked, if the foreign national has resided outside the territory of the European Union for a period of 12 consecutive months or longer, or has resided outside the Netherlands for 6 consecutive years or longer.

In this judgment, the Court answers the question when that period of 12 consecutive months or consecutive 6 years is interrupted. This judgment means that the IND must adjust its policy. That will be explained below.

The Court comes to the conclusion that this period of 12 months or 6 years is already interrupted if the foreign national has only been physically on the territory of the European Union for a few days during this period.

The Dutch Immigration and Naturalisation Service (IND) and assumes a completely different starting point. The IND applies the policy rule that the period of 12 consecutive months of residence outside the EU or 6 consecutive years outside the Netherlands is only interrupted if the foreign national has established his main residence again in the Netherlands or in another EU Member State.

In the Netherlands, the IND explains this in such a way that the foreign national must have registered again in the Dutch national population register (Brp).

The IND even notes in the explanatory notes to the policy rule that one or more short trips to the Netherlands or the European Union, for example for a holiday (WBV 2020/23), does not interrupt the period of 12 consecutive months or 6 consecutive years. That is now no longer tenable.

This ruling by the Court means that the IND must immediately adjust its policy and working method. This is because the interpretation and decision of the Court is leading.

In the words of the EU Court of Justice in this judgment: “any physical presence of a long-term resident in the territory of the European Union during a period of 12 consecutive months, even if such a presence does not exceed, during that period, a total duration of only a few days, is sufficient to prevent the loss, by that resident, of his or her right to long-term resident status under that provision.”(paragraph 47).