A third-country national can apply for an extension of the validity of the residence permit (regular fixed period) from three months before the end of the residence permit. The application for an extension is submitted on time if it is received no later than the day before the day on which the period of validity expires unless the delay cannot be attributed to the third-country national. If this is not the case, then a so-called ‘residence gap’ may occur unless the delay cannot be attributed to the third-country national.
A residence gap occurs if the new effective date of an (extended) residence permit does not tie in with the last date before the expiry of the residence permit and interrupts lawful residence. No rights can be derived from the period during which the third-country national did not have any right of residence, with the result that the third-country national must start all over again on the five-year period in order, for example, to qualify for a residence permit as an EU long-term resident or to obtain Dutch citizenship. This is often perceived as unjust or disproportionate because in practice of an extension application filed late the restriction of the residence permit is still met.
On 8 April 2022 the Immigration and Naturalisation Service (‘IND’) published an information message about the working method regarding residence gaps that are caused by the submission of late extension applications for regular fixed-term periods and stronger residence. The IND has looked at how the residence gap problem can be solved within the current laws and regulations and policies with an eye to the human dimension. The IND seems to be more lenient with late-submitted extension applications. The new working method of the IND is as follows:
If the extension application has been submitted within four weeks of the expiry of the last permit, the IND assumes, without inquiring, that the delay cannot be charged to the third-country national;
In case of extension applications submitted late that exceed the four weeks, an individual test for excusability will take place;
The residence permit will, in principle, be extended consecutively to the old residence permit, even if the proof that the conditions are met is submitted later - but within four weeks after offering reparation;
The text in the reminder letter, which is sent three months before the expiration of the validity of the residence permit, is amended to stress the importance of timely submission.
With this, a policy change has taken place. This has been incorporated into the Aliens Circular 2000 (‘Vc’) as of the 30 of June 2022, namely in paragraph B1/6.1 Vc. It is therefore relevant to check whether the IND has correctly applied its policy on extension applications that are submitted too late. If not, then this more favourable policy can be invoked.
Do you have questions about this topic? Please do not hesitate to contact Drenusha Hoxha. She is happy to assist you!