Residence gaps arise because residence permits are not issued consecutively. Such a residence gap can arise due to a too late – submitted after the expiry date of the previous residence permit – application for extension or change of that residence permit. If such an application is submitted in time – before the end date of the previous residence permit – then a residence gap may also arise if it is only proved at a later date that all the conditions for that new residence permit have been met. For example, if the correct documents that the IND wants to see are submitted at a later date.

Such a residence gap can have very unpleasant consequences, especially if you want to apply for a permanent residence permit or Dutch citizenship. This can mean that you lose all residence rights built up in the past – before this residence gap – and that you have to start counting and building up residence rights again. Even a one day residence gap can be “fatal” and can mean that you lose all residence rights that you have built up in the past and that you have to wait up to 5 years longer with the application for a permanent residence permit or Dutch citizenship. This may be even more annoying if the residence gap has arisen at the hands of someone else, for example the employer who submits an application too late, or a Dutch partner who informs the IND that the relationship has ended, after which the residence permit is retroactively withdrawn.

However, not all residence gaps are always a problem: if during this residence gap you had the right to await a decision on an application or a procedure in the Netherlands (‘procedural legal residence‘), then the period before that gap does count for the EU permanent residence permit (‘the EU long-term resident permit’). This was not the case before, but has been changed as a result of a case won by mr. Scheers at the Council of State based on EU law and subsequently amended rules. Please note: when applying for a national permanent residence permit or Dutch citizenship, these ‘procedural’ residence gaps are still problematic and the period before does not count.

Fortunately, residence gaps are also being healed more and more. This happens, for example, if the IND can be convinced that the foreign national cannot be blamed, for example if the reason for the late submission lies with the sponsor. Then the IND can still rectify this. See, for example, this decision, in which the residence gap incurred by a highly skilled migrant at the hands of the employer has been healed by the IND in an objection procedure. Sometimes the IND stands firm and it can be advisable to appeal to the court. See, for example, this recent court’s decision, in which the proof of a bank statement requested by the IND was not immediately submitted with the application for residence as a self-employed person, but proof from the accountant with the bank account number and balance, which was later also confirmed by the yet submitted bank statement, had been submitted. Another example is the residence gap that arose as a result of the withdrawal of a residence permit because of the partner’s mere notification of the termination of the relationship. After a decision by the Council of State, this gap was also rectified in a new decision by the IND .

It remains of great importance to timely – well before the expiry date of the residence permit – submit an application for a new residence permit and to lodge an objection if a residence gap does arise. This also applies if the new residence permit is granted, but with a later commencement date. If an objection is not lodged in time and the residence gap is not healed, this residence gap will be established and it will be much more difficult to nullify the consequences at a later date when applying for a permanent residence permit or Dutch citizenship.

For more information about residence gaps, the consequences thereof and the application for a permanent residence permit or Dutch citizenship, please contact Scheers Advocatuur.