Moving your main residency outside the Netherlands

Now that traveling is much easier again and remote working seems to remain part of the new work culture, more questions may arise regarding the maximum length of time a person with a Dutch residence permit may stay outside the Netherlands. A stay outside the Netherlands longer than allowed can lead to the IND's assumption that a person has moved his main residence outside the Netherlands, which is a reason for revocation of the residence permit, or a rejection of the application for extension of the period of validity of a residence permit.

Such a revocation can have far-reaching consequences for the foreign national, but also for other parties such as the employer. If the residence permit is revoked and the foreign national continues to work, a situation of illegal employment may arise. In this blog we explain what is meant by moving the main residency outside the Netherlands, bearing in mind that prevention is better than cure.

The policy with regard to moving main residency is as follows. In the following situations the IND assumes the main residency has been moved out of the Netherlands.

the foreign national has stayed outside the Netherlands for more than six consecutive months, unless he makes it plausible that the exceeding of these six months is due to circumstances beyond his control; or

the foreign national has stayed outside the Netherlands for more than four consecutive months for the third consecutive year, unless he makes it plausible that the center of his activities has not shifted abroad.

Moving the main residency has everything to do with how much time is spent outside the Netherlands. In a recent ruling of 22 March 2023 of the Administrative Jurisdiction Division of the Council of State confirmed that it does not follow from the above criteria that it must be assessed whether the foreign national has shifted the center of activities abroad if the period of six consecutive months or the period of four consecutive months in three consecutive years outside the Netherlands has not been met yet. The test for the center of activities comes only after the four-month period has been exceeded.

The abovementioned does mean, however, that the foreign national - if the foreign national stays outside the Netherlands for more than the abovementioned months - can make it plausible that the center of his activities has not shifted abroad. Thus, the foreign national retains the ability to refute the state secretary's judgment even if the above criteria are met. But if the criteria are not met, you do not get to the test of whether the center of activities has not shifted abroad.

It is important to note that specific exceptions to the above criteria apply. For example, the IND assumes that there is no moving of the main residency outside the Netherlands if the foreign national has a temporary regular residence permit with the purpose 'labor as a highly skilled migrant' and does not perform labor outside the Netherlands for more than eight months, provided the foreign national continues to meet the conditions of the residence permit. In short, a foreign national who holds a residence permit with the purpose 'work as a highly skilled migrant' may stay outside the territory of the Netherlands to work for a maximum of 8 out of 12 months. The requirement of consecutive months does not apply here, so it is important to take into account that separate periods are also added together.

If you or your employee has received an intention regarding the revocation of the residence permit due to an alleged transfer of the main residency abroad, please don’t hesitate to contact us. In addition, please contact us if the current residence permit is about to expire and you have exceeded the periods. Depending on the purpose of stay and the actual situation, we can advise you on this matter.