On 12 February 2020, the Highest Administrative Court in The Netherlands ruled that the automatic loss of Dutch nationality after residing outside the EU for more than 10 consecutive years, might violate the principle of proportionality as protected by EU Law. This might only be the case when the Dutch citizen concerned: A. holds two or more nationalities B. a Dutch passport was not issued to him/her during the 10-year period.

In each case, it must be assessed whether the alleged loss (i.e. 10 years after the latest Dutch passport issuance) is in line with the EU principle of proportionality. Under this assessment, it is not necessarily how strong one’s ties remain with The Netherlands, but rather what the consequences of the loss would be for an individual to work or study in the EU.

As of 1 January 2021, new legislation on the Dutch Civic Integration Exam will become effective. These new rules have consequences for those who are currently living, working or studying in The Netherlands and are planning to apply for a permanent residence permit and/or wish to obtain Dutch nationality. What are the consequences of these rules? That depends on when one started the civic integration process. The Dutch government has determined that anyone who started the civic integration exam before the end of this year will be allowed to finish the process under the old rules, even when the new rules have come into force. This means that the new rules apply only when the integration process has been initiated after 1 January 2021.

From 1 January 2021, the ‘Oriëntatie op de Nederlandse Arbeidsmarkt’ (ONA) will be replaced by the ‘Module Arbeidsmarkt en Participatie’ (MAP). Moreover, the level of the Dutch language exams will be raised from A2 to B1. This means that one’s competence in listening, reading, writing and speaking in Dutch will be assessed at a more advanced level. If you are currently in the process of taking parts of the civic integration exam, you can continue taking the exams at the A2 level into the next year. The exam ‘Kennis van de Nederlandse Maatschappij’ (KNM) and the ‘Participatieverklaringtraject’ (PVT) will remain part of the exam requirements.

As of April 1, 2020, Japanese and Taiwanese citizens, who are under the age of 31, can apply for a Dutch Working Holiday Visa. Applicants who are approved can legally remain in The Netherlands for one full year with unlimited access to the Dutch labor market. Only part time or freelance employment is allowed under this visa. There is an annual quota of who can be approved: 200 Japanese applicants and 100 Taiwanese applicants. Japanese citizens must register with the Dutch Embassy in Tokyo before they can apply for residency with the IND in The Netherlands.

After the electoral results in the UK on 12 December 2019, it is almost certain that Brexit will take place. The planned Brexit date is set for January 31, 2020. A transition period will be in place until December 31, 2020. During this transition period it will still be possible for British citizens to preferentially immigrate to The Netherlands. Whether it will ultimately end in a so-called No-Deal Brexit or a Brexit with a deal remains to be seen in the coming months.

In the event of a No-Deal Brexit, the Dutch government has announced that British nationals who are legal residents of The Netherlands prior to Brexit would be allowed to continue their legal stay in The Netherlands. First by a notification letter, they will be granted a temporary right of residence after which they will be invited by the IND to start a residence permit application procedure. This application will be assessed against the backdrop of Directive 2004/38/EU, the directive which governs the right of residence of EU-citizens. This implies that little will change for those British citizens who were already living in The Netherlands prior to December 31, 2020. The same procedure and rules apply to family members of a British citizen who have legally resided in The Netherlands before 31 December 2020.

For British nationals who would like to immigrate to The Netherlands after the transition period, the standard and substantially more restrictive residence and work permit requirements under the Dutch Immigration Act, will be applicable. British nationals who temporarily leave The Netherlands after 31 December 2020, for example due to work obligations abroad, should inquire in advance of the consequences of their departure and their possibilities of returning to The Netherlands.

On 5 November 2019, the Dutch Parliament adopted an Act, Rijkswet Inperking Gevolgen Brexit, that would allow Dutch nationals who reside in the UK to acquire British nationality without losing their Dutch nationality. This Act will enter into effect only in the event of a No-Deal Brexit.

In such a case, Dutch citizens will be able to obtain British nationality without automatically losing their Dutch nationality. However, Dutch citizens who are not married and underage children must have had a previous settled status in the UK for some time first.

A similar arrangement for British citizens in The Netherlands has not been established. The Dutch government takes the view that it has already safeguarded the continuous residence rights for British citizens in case of a No-Deal Brexit.

To stimulate the Dutch economy, this new measure will become effective on 1 January 2020. To encourage business startups in The Netherlands, an immigrant’s spouse and other family members will be allowed full access to the Dutch labor market. Partners of business startups, as well as partners of freelancers and entrepreneurs, under the Dutch-American Friendship Treaty or the Treaty of Amity and Commerce between Japan and The Netherlands, will be allowed without restrictions to be employed in The Netherlands.

The Dutch points-based system, for the admission of independent entrepreneurs and freelancers, such as IT entrepreneurs or freelancers in the creative industry, has been created to select self-employed highly skilled individuals who stimulate growth to the Dutch economy. This system also benefits non-highly skilled entrepreneurs. For example, the owner of an Australian brunch and dinner cafe in Amsterdam was allocated sufficient points by showing substantial investments in the café, solid revenues, liquidity, as-well-as job creation.

The Intra Corporate Transferees Program, a preferential work permit program, may appear to be beneficial only to large multinational companies. However, the IND practice demonstrates that a small family run business, such as an Indian trade company specializing in chemicals and petro-chemical products, can also rely on this program to obtain work permits without job validation tests. By means of e.g. purchase orders, the business must demonstrate substantial economic activities in The Netherlands.

The Working Holiday Exchange Program states that young Canadians, Australians, South Koreans, New Zealanders and Argentines are allowed to remain legally in The Netherlands for one full year. During this time, they have unlimited access to the Dutch labor market. In 2018, the Dutch government determined that applicants for the Dutch Working Holiday Visa could not work for the same employer for more than 12 weeks. However, this restriction was eliminated on October 1, 2019. Nevertheless, full time work is still not allowed throughout the year.

For many years, there was a Dutch law allowing one to keep one’s full access to the Dutch labor market, when this right was attached to one’s previous residency permit and a different residency permit was granted. In 2018, the IND determined that this rule no longer applied to those who had unlimited access to the Dutch labor market on the basis of international agreements, such as the EC-Treaty, the Treaty of Amity and Commerce between Japan and The Netherlands and the Working Holiday Programs with e.g. Australia, New-Zealand and Canada.

In March 2019, the Dutch Immigration Courts ruled that this interpretation of IND was incorrect. However, by amending the Immigration Act on October 1, 2019, those who previously were allowed full access to the Dutch labor market on the basis of international agreements are now explicitly excluded from the “once full access, always full access” principle.

To encourage business startups to The Netherlands, an immigrant’s spouse and other family members will be allowed full access to the Dutch labor market. Although it has not been determined when this measure to stimulate the Dutch economy will become effective, it is expected to begin sometime in 2020. By then, partners of startups, but also partners of freelancers and entrepreneurs under the Dutch-American Friendship Treaty or the Treaty of Amity and Commerce between Japan and The Netherlands, will be allowed to accept employment in The Netherlands without restrictions.

Background:
The Treaty of Amity and Commerce between Japan and The Netherlands offers Japanese nationals preferential treatment for those who wish to become a resident, reunite a family, take up employment or establish a business in The Netherlands. The Dutch court ruling of December 24, 2014, regarding “Shofukan,” determined that Japanese citizens are allowed full access to the Dutch labor market. In that case, the Dutch courts ruled that Japanese citizens must be treated legally the same as Swiss nationals, according to a treaty with Switzerland of 1875.

Since Swiss nationals have full access to the Dutch labor market, Japanese citizens also qualified for full access to the Dutch labor market. In other words, a work permit is not required and they need not comply with the Highly Skilled Migrant Worker salary thresholds to be able to work as an employee in The Netherlands.

Court Case of November 11, 2016
The Dutch courts determined that Japanese citizens must no longer be governed like Swiss nationals since the 1875 treaty with Switzerland has been invalidated by a later agreement between the EU and Switzerland making it no longer relevant. Therefore, Dutch law returns the status before the “Shofukan ruling,” which determines that Japanese citizens be governed like American nationals, according to the Dutch-American Friendship Treaty. Therefore, it can be relatively easy to obtain a self-employed residency permit, but Japanese citizens are no longer exempted from the work permit requirement as of January 1, 2017.

7. Consequences as from January 1, 2017
Employment: If you are a Japanese citizen, taking up employment in The Netherlands, your employer must apply for a work permit on your behalf, or your employer must pay the minimum salary threshold for Highly Skilled Migrant Workers.
Self-employment: If you are a Japanese citizen wishing to establish a business in The Netherlands, you will be allowed to work only as a freelancer or entrepreneur.
Family member employment: If you are a Japanese citizen, taking up employment or establishing a business in The Netherlands, and your family accompanies you, your family will no longer be allowed full access to the Dutch labor market.
Existing employment permits: If you currently hold a residence permit for employment or self-employment in The Netherlands with full access to the Dutch labor market, when your residency permit is extended, the IND will limit your access to the Dutch labor market.

Family members of entrepreneurs or freelancers, with a residence permit under the Dutch immigration program for independents and business proprietors, or the Dutch-American Friendship Treaty, have an equal right to conduct business or provide services in The Netherlands. This was recently confirmed by the IND in a court case pending with the District Court of Amsterdam. In addition, the District Court of Amsterdam ruled that one’s residency card should indicate this right explicitly.