Estrafidus Immigration and Nationality Lawyers

From Chavez-Vilchez residence to permanent residence

Prior to 7 September 2022, Chavez-Vilchez residence permit holders were not allowed to change their residence into permanent residence. Due to a recent judgement of the Court of Justice of the European Union on 7 September ’22 in ECLI:EU:C:2022:639, it was determined that the right of residence, of non-EU parents who are caretakers of minor Dutch children, is not temporary. This ruling has important consequences for the Dutch immigration practice. What are the consequences and how and when can a Chavez-Vilchez permit holder change the status into a permanent status?

The residence permit for non-EU parents that is based on the dependent relationship between the parent and the minor child is rooted on the idea that the child, who has the Dutch nationality, can and should be able to make use of its EU rights. However, the child cannot exercise these rights if the parent, who is a non-EU citizen, does not have a residence permit in the Netherlands, and therefore the child is forced to leave the territory of the EU and live with the parent in the country of which the parent has the nationality.

This provision has been known for many years, and in the Netherlands it was implemented into regulation after a ruling of the Court of Justice in the 2017. After this ruling, the Dutch government decided that the right of residence of the parent is of temporary nature. The idea was that when the child reaches the age of 18 years, the child no longer needs the parent, and therefore the parent no longer has a right of residence in the Netherlands and can return to the country of origin. For years, applications for a permanent residence permit were rejected for this reason, and parents could not acquire permanent residence. 

Parents tried to convince Dutch courts that this right of residence is not of temporary nature, as intended by EU-law, specifically by the European Directive 2003/109, concerning the status of third-country nationals who are long-term residents. This Directive determines who is eligible for the status of long-term residence, also referred to as permanent residence. The Dutch courts nonetheless followed the somewhat implausible philosophy of the Dutch government. 

In article 3, second paragraph, under e, of the Directive is stipulated who can not obtain the permanent residence status. This includes third-country nationals who reside in a member state (the Netherlands) for temporary reasons, such as au pair or seasonal worker. According to the Dutch government, parents who are holders of the Chavez-Vilchez residence permit, also fall under this scope of temporary reasons, because their child will ultimately turn 18 years and from then on the parent is no longer needed. 

The ruling of the European Court of Justice has a different perspective. And rightly so! Parents who live in the Netherlands with their children are not here on a temporary basis. The European court justifiably refers to the fact that such a right of residence, where there is an intention to settle permanently and where the parents will live here with their children for at least 5 years, falls within the scope of the Directive and thus parents are eligible for acquiring the EU-long term residence permit. Now, holders of the Chavez-Vilchez residence permit can apply for permanent residence in the Netherlands. The parent who applies for a permanent status must meet 2 conditions: having sufficient income and pass the language exam on A2-level. 

How we can help

We are happy to assist you with your application, objection procedure or appeal case for a permanent residence permit. If you want to know more about what we can do for you, contact us or call us at +31 70 770 9065.

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