The IND must determine the starting date of an EU/EEA residence document

In a judgment of 26 June 2024, the High Administrative Council of State (ABRS) ruled that, on the basis of the General Administrative Law Act (Awb), the Immigration and Naturalisation Service (IND) is obliged to determine the starting date of an EU residence permit, if the applicant requests this.

Background of the case

This case concerned a Moroccan man who has been in a relationship with a Dutch woman since January 2019. In 2019, the man submitted an application for an EU residence document to be allowed to stay with his minor Dutch stepson (a so-called ‘Chavez’ application). This application was rejected. In November 2020, the man had a child with his partner. As a result, the man was subsequently granted a Chavez permit in January 2021.

The appeal

The appeal ultimately revolved around the question of whether the IND could or should have determined an earlier start date of residence permit. The ABRS ruled that this was indeed the case.

In the case of EU residence permits, the start date of the legal residency is not determined. This makes it unclear since when exactly a foreigner has legal residency on the basis of EU law. The ABRS ruled that the IND has no authority to determine the start date, but that this does not mean that the IND is not obliged to do so under the General Administrative Law Act.

In addition, the ABRS ruled that the moment at which the foreign national gained legal residency under EU law is relevant to the question of when a foreign national is eligible for stronger right of residence or social benefits, such as allowances and pension accrual. These interests of the foreign national outweigh the disadvantages that the IND experiences when determining the commencement date of the start of legal residence in the Netherlands, such as additional workload at the IND.

It is important to note that the burden of proof for the existence of legal residency based on EU law and the moment at which the legal residency starts, lies with the foreign national. This means that it is up to the foreign national to demonstrate that he has a derived EU right of residence and when exactly this right started.

Working paper IND

Following the ruling above, the IND has published an working paper. This paper states that from 14 August 2024 onwards that the IND will determine the effective date of the EU right of residence if the foreign national requests this. The effective date will then be published in the decision on the application. If the foreign national does not request the effective date to be determined, the IND will not do so either.

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