Revocation of a residence permit with retroactive effect: a proportionate decision?
The residence permit of a foreign national can be revoked by the Immigration and Naturalisation Service ('IND') with retroactive effect due to – for example – incorrect information was provided in the past, or because the conditions of the residence permit are no longer met. What are the possible consequences of the revocation decision for the foreign national and his or her family members? And what is the legal framework for assessing whether the consequences for those involved are proportionate in relation to the objectives pursued by the revocation? In this blog, we explain the recent developments in this area.
Consequences 'residence gap'
After a reorganisation, a foreign national is reassigned by his employer to a subsidiary company that does not have the status of recognised sponsor. The IND therefore decides to revoke the residence permit with retroactive effect from the date of relocation, because the conditions of the highly skilled migrant scheme are no longer met. This creates a so-called 'residence gap', which means that the highly skilled migrant’s lawful residence is interrupted, from which no rights can be derived. Also, this revocation decision has consequences for his family or relatives who have built up / developed a life in The Netherlands during this period. The consequence of the revocation decision is that the persons concerned have to wait five years after the effective date of the first permit granted following the residence gap in order to, for example, qualify for a residence permit as an EU long-term resident or to obtain Dutch citizenship. Therefore, it is essential to lodge an objection in time against the IND's decision.
Discretionary authorisation
As mentioned above, the IND can decide to revoke the residence permit of a foreign national with retroactive effect. The revocation decision is based on a discretionary authorisation which has its basis in the Foreigners Act and is further elaborated in the policy rules. When the IND decides to revoke a resident permit, it is plausible that a legal dispute arises between the parties about the proportionality of the decision. On 2 February 2022, the Council of State (hereinafter: the Council) decided that a decision that is partly based on a policy rule must (also) be assessed against the so-called proportionality principle of Article 3:4, section 2 of the General administrative law Act
Proportionality principle
The principle of proportionality was generally assessed restrictively by the administrative courts. The restrictive assessment means that the administrative judge only assesses whether the IND could not reasonably consider that there is a proportionality between the aim of the withdrawal (rectifying an unlawful situation) and its consequences. However, the Council decided on 2 February 2022 that the principle of proportionality should be assessed less restrictively and that more connections should be made to the principle of proportionality under EU law. In EU law, decisions - in this blog focused on the withdrawal decision - are assessed against the following three questions:
Is the decision proportionate to achieve the aim?
Is the decision necessary to achieve the aim?
Is the measure well-balanced?
With the judgment of the Council, it seems that the assessment will become more intensive. According to the Council, the intensity is determined, for instance, the extent of Discretionary authorisation of the IND in this case, the aims to be pursued by the decision and the interests that are involved, and the extent to which these are affected by the decision. Depending on the interests, the negative consequences of the decision, or the infringement of fundamental rights, the level of intensity of the assessment has to be determined, according to the Council. In the opinion of the Council, the assessment of the proportionality principle depends on various factors and therefore differs from case to case.
In view of this recent judgment of the Council, we agree with the Advisory Council on Migration of the Advisory Committee on foreign Nationals that this judgment promises perspective for the labour migration practice. The reason for this is that the intended connection to the EU law assessment assigns (more) weight to the interests involved in the revocation decision. Moreover, not all revocation decisions are the same. It is likely that case law on the proportionality principle of the retroactive revocation decision will develop further in the coming years.