Navigating the complexities of immigration law can be challenging, especially when dealing with EU directives and national interpretations. In the Netherlands, the “Verification Against EU Law” (Toetsing aan het Unierecht) is a specific procedure that can be relevant for certain expats. This post aims to clarify what this procedure entails and when it might be applicable.

Understanding EU Free Movement Rights

The foundation of the Verification Against EU Law lies in the principle of free movement within the European Union (EU). This fundamental right allows EU citizens to move, reside, and work freely within any EU member state. This right also extends to certain family members of EU citizens, even if they are not EU citizens themselves.

What is the Verification Against EU Law?

The Verification Against EU Law is a procedure conducted by the Dutch Immigration and Naturalisation Service (IND) to assess whether a specific situation falls under the scope of EU law, specifically the EU Free Movement Directive (Directive 2004/38/EC). This assessment is crucial when someone believes their rights are derived directly from EU law, rather than national Dutch immigration law.

When is the Verification Against EU Law Relevant?

This procedure is typically relevant in situations where:

  • Family Members of EU Citizens: A non-EU/EEA national is a family member of an EU/EEA citizen who is exercising their free movement rights in the Netherlands (i.e., the EU citizen is not a Dutch national living in the Netherlands). This is often related to the “Chavez-Vilchez” case law, which further clarifies the rights of non-EU/EEA family members of EU citizens.
  • Potential Conflict Between National and EU Law: There is a potential conflict or ambiguity between Dutch national immigration law and EU law regarding a specific residence situation.
  • Direct Reliance on EU Law: An individual wishes to directly invoke their rights based on EU law, rather than relying on a national residence permit.

Key Scenarios Where Verification Might Be Necessary:

  • Non-EU Spouse of an EU Citizen Working in the Netherlands: If an EU citizen (e.g., a German national) is working in the Netherlands, their non-EU spouse might be eligible for residence under EU law, even if they don’t meet all the requirements of Dutch national law.
  • Dependent Family Members of EU Citizens: This can include children, parents, or other family members who are dependent on an EU citizen exercising their free movement rights.
  • Primary Carers: In specific circumstances, a non-EU national who is the primary carer of a dependent EU citizen (especially children) might derive residence rights directly from EU law.

The Process of Verification Against EU Law:

The process usually involves the following:

  1. Application to the IND: The individual submits an application to the IND requesting a verification against EU law.
  2. Submission of Evidence: The applicant must provide comprehensive evidence demonstrating their relationship with the EU citizen, the EU citizen’s exercise of free movement rights, and any other relevant circumstances. This evidence can include:
    • Marriage or birth certificates
    • Proof of cohabitation
    • Proof of the EU citizen’s employment or self-employment in the Netherlands
    • Proof of dependency (if applicable)
    • Proof of health insurance
    • Passport copies
  3. Assessment by the IND: The IND assesses the application and the submitted evidence to determine whether the situation falls under the scope of EU law.
  4. Decision: The IND issues a decision stating whether the individual’s residence rights are derived from EU law. If the decision is positive, this can serve as proof of legal residence in the Netherlands.

Important Considerations:

  • Complexity: The Verification Against EU Law procedure can be complex and requires a thorough understanding of EU law and relevant case law.
  • Evidence is Crucial: Providing comprehensive and compelling evidence is essential for a successful application.
  • Legal Advice: It is highly recommended to seek legal advice from an immigration lawyer specializing in EU free movement rights. They can provide expert guidance and represent you throughout the process.
  • Distinction from National Permits: It’s important to distinguish this process from applying for a national Dutch residence permit. The Verification Against EU Law aims to establish rights directly under EU law.