By A. G. Kleijweg*
Recently, a lot of questions were asked about the refusal and withdrawing of authorisations for temporary stay (MVV), residence permits and passports, because of false information or criminal conviction.
I thought it would be useful to write an article about it. This article is a general and even incomplete information, but if you have a problem or afraid that you might get a problem, contact a specialised lawyer as soon as possible. The rules are there, but since it is not only Dutch laws that are applicable, sometimes there are alternatives to be found.
Here are grounds for refusal and withdrawing an MVV and a first residence permit. Later I will describe the same issue concerning nationality.
Grounds for refusal of MVV and the first residence permit
We must first agree on what false information is. A working definition is that it is information given or withheld by or on behalf of the immigrant; necessarily information that could have been decisively relevant for the authority that has to decide on the application for a residence permit or the request for naturalisation. Background information, given falsely or being withheld, can be a ground for refusal or withdrawal.
The application for an MVV or a first residence permit can be refused solely for providing false information. For example, you have been in The Netherlands for a while, and you had to leave the country to apply for an MVV. In your application, if you fail to mention that you have been in The Netherlands before, you are withholding information and therefore providing false information. If that is discovered, it is enough reason to refuse the application.
Another ground for refusal is if the immigrants who applies for an MVV or residence permit, has committed a criminal offence. A conviction for a criminal offence is always enough reason to reject any application. In this context, it is important to realise that not only a conviction by a court of law is a ground for refusal, but also the fact that one has accepted a so called “transaction” which is often used in unimportant criminal cases. For example, you are suspected of shoplifting but have no prior criminal record. Often, the court official will send you a bill (accept-giro) and a letter saying “if you pay this amount specified, the case will not be brought to court.” Many people, guilty or not, are scared stiff by such a letter and pay, thinking they are avoiding trouble. But then, payment of such fine is considered an acceptance of guilt and therefore a convict. With this, the chance of getting a permit is gone
Grounds for refusal of prolongation of a residence permit
Prolongation of the permit can be refused if false information is given on the application. For example, the immigrant has committed a (minor) criminal offence, which in itself is not always a reason to refuse prolongation, but in the application for prolongation, he does not give this information. Withholding this information is considered to be giving false information. The application can then (and will) be refused.
Prolongation of the permit can be refused if the holder of the permit has committed a criminal offence and has been convicted by a court of law to serve some time in jail. Even this is not always enough ground for refusal of prolongation. The longer the person concerned has been a legal resident of The Netherlands, the more serious the committed crime must be and subsequently, the longer the time spent in jail, before it is enough ground to refuse prolongation of the residence permit.
Grounds for withdrawing someone’s residence permit
Withdrawal of the permit is possible if it has been found that in previous applications, false information was given. For example, the immigrant told the Authorities that he was unmarried when he came to The Netherlands. He applied for a permit to stay with his Dutch wife and got his residence permit. Years later, it was found out that he was not unmarried at all. This will be enough reason to withdraw his residence permit with “terugwerkende kracht”. These things actually happen. The fact that one provided false information can be held against the person until twelve years after the day that the false information was given!
Withdrawal of the permit is also possible if the holder of the permit has been convicted for a crime. Just like in the case of prolongation, the longer a person has been a legal resident of The Netherlands, the more serious the crime must be, before withdrawal of the permit is possible.
Reasons for losing the nationality of The
Although the nationality of The Netherlands will not be granted to a person with a background of more or less recent criminal behaviour, the fact that a very serious criminal offence has been committed by a person with the Dutch nationality is not a reason for withdrawing the granted nationality.
There can be automatic lose of the Dutch nationality because of the law and no decision of any authority is required for this. This is so in the following cases:
- If someone granted the Dutch nationality, has been living in his country of birth for ten years or more.
- When granted another nationality. For example, if a Dutch sportsman is granted the Belgian nationality, he will loose the Dutch nationality.
- If one makes a declaration in which one rejects the Dutch nationality
Another possibility to loose the Dutch nationality is when the Minister for Immigration and Integration withdraws the granted nationality. The Minister can do this but the law does not force her to do so, even when false information has been given.
It is quite interesting however when someone purposely give false and substantial information about name, date of birth and nationality. We are not talking about a misread letter in a name or another mistake of no relevance, but about cheating. Imagine a James Bleu, born on
The question is, could James Green rely on the fact that he became a Dutch national? Obviously, the Authorities only knew about Mr. Green and granted him Dutch nationality, unaware of the fact that his identity was actual a non-existing one. Clearly, Mr. Green knew he was cheating and could not reasonably rely on his Dutch nationality.
It is sometimes hard to accept this conclusion, especially if James (or whatever his name is) is a nice guy and a good neighbour. Still he has been cheating to get a residence permit whereas other people, who did not cheat, were refused.
Until twelve years after granting the Dutch nationality, it is possible to withdraw it because of false information. So, except in very special circumstances, the legal conclusion is that James Bleu or White could not rely on his Dutch nationality. This was also the judgement of the “Hoge Raad” the highest court of law in The Netherlands. The Hoge Raad, always careful, leaves open the possibility of special circumstances.
One of the very special circumstances could be that the Minister for Immigration and Integration, knowing that James had cheated, confirmed that James did not have to worry about his Dutch nationality anyway. James must then be able to trust The Minister. This is in my point of view even if the confirmation was made because of a mis-interpretation of facts or the law. Another special and additional circumstance could be that the Minister for Immigration and Integration knew for a long time that James cheated.
One must keep in mind that “The Minister” is an independent entity, no matter who is doing the job at the time. When The Minister knows, it implies that all people working in the department knows it as well - whether they personally knew it or not. This is very important. For example, when James confessed to his mistake a couple of years ago, the Minister knew but did not act, and therefore confirmed that James was a Dutch national, the Minister gave up the right to hold it against James, that he has cheated in the past. More so when James was allowed to carry out jobs for which the Dutch nationality was a primary requirement and the Minister knew it.
These circumstances are special enough and sufficient to convince a court of law that the Minister for Immigration and Integration could not take away the Dutch nationality of James.
Editor’s Note: Due to the many reactions received by the lawyer on immigration issues, he has also agreed (for free) to take a look at any negative decisions of any kind on immigration matters. If you have recently received a negative decision and need a quick legal opinion on it, you may send a copy of such negative decision to his office with your name, address and especially a functional telephone number. Please note that the decision must be recent because of the short time required to make an appeal. Readers are also urged to send in suggestions for subjects to be covered in Legal Matters column.
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