International students from outside the EU can study in the Netherlands with a residence permit. The Dutch educational institution that admits this student registers this student with the Immigration and Naturalization Service (IND) and the IND will then grant a residence permit. However, if this student achieves insufficient study results (less than 50% of the credits), the educational institution will deregister the student with the IND, after which the IND will withdraw the residence permit. This does not only apply if insufficient results are achieved in the first academic year, but also applies to subsequent academic years. Where Dutch students can continue their studies after the first year of study, even with poor study results, international students are confronted with illegal residence. It is true that the international student can continue his studies – remain enrolled at the educational institution, register for a new academic year and still obtain sufficient study results and also graduate – but then as illegal. This in turn has several negative consequences, for example there is no entitlement to social benefits, they cannot take out (compulsory) health insurance and these students can be deported. This applies even if the student still achieves good study results and is close to graduating when the IND has to decide on the withdrawal or extension of the residence permit. Once deregistered from the IND for that study remains deregistered, which in turn leads to withdrawal and the residence permit not being granted or extended again, regardless of the good study results afterwards.

Scheers Advocatuur has argued that this treatment of international students, which does not take into account the study results at the time of the residence permit decision, is discriminatory and contrary to EU law. The European study directive 2016/801 stipulates that there is a right to a residence permit for study. Indeed, this EU directive stipulates that the residence permit can be withdrawn if insufficient study results are achieved according to national law, but a deregistration by the educational institution does not play a role in this. This EU directive also stipulates that these international students are entitled to the same treatment as national students.

Dutch law obliges the administrative authority to assess at the time of the decision whether the conditions are met, but that is not done in these cases with a mere reference to past results. This client of Scheers Advocatuur had substantiated before the decisions of the IND that he would be able to complete his studies in the short term, but nevertheless his residence permit was subsequently withdrawn and not extended. Furthermore, these students are not treated in the same way as Dutch students, because Dutch students can continue their studies without any problems even if their study progress is insufficient.

In the first instance, the court rules that the deregistration by the educational institution is insufficient and that the IND must take into account the continuation of the study and the study results achieved – see this decision -. The IND should also have assessed the proportionality of the withdrawal. However, the same court then rules, after the IND upheld the withdrawal, that the earlier deregistration is sufficient for the withdrawal of the residence permit and that the study results afterwards are not important – see this new decision -. In this second judgment, the court does not comment at all on the moment of assessment, while this was put forward on appeal. The court also rules in this last decsion that there is no question of unequal treatment between foreign and Dutch students, because different conditions apply to both. The court fails to recognize that those other conditions are precisely the problem and are prohibited by the EU directive. An appeal has therefore been lodged against the latter judgment with the Council of State, which will now have to comment on the matter and interpret EU law.