Mind the (residence) gap

Mind the gap

When it comes to migration law, following the correct process is the best way to prevent problems. One common problem is a residence gap: an interruption of your continuous stay in the Netherlands. In practice, once you have a residence gap the damage is done; there is seldom a cure.

If your residence permit expires and it is not extended in time, this will cause a gap in your period of continual residence in the Netherlands. Such a residence gap may cause you significant problems, both in the short-term and for the future.

Short-term impact

Lower salary criterion

If you are a highly skilled migrant, a residence gap can cause you to lose your entitlement to a lower salary criterion. That lower salary criterion could be relevant if you applied for the highly skilled migrant residence permit during or directly following a search year residence permit. The lower salary criterion is currently (January 2021) EUR 2,497 gross per month.

Status as a highly skilled migrant

If a residence gap occurs, it could jeopardise your status as a highly skilled migrant. If you lose your entitlement to the lower salary criterion, you will no longer meet the required salary threshold. The normal salary criterion for a highly skilled migrant over 30 is EUR 4,752 gross per month. That for a highly skilled migrant under 30 is EUR 3,484 gross per month (both amounts apply per January 2021).

Right to work in the Netherlands

Not meeting the requirements of your residence permit can affect your right to work in the Netherlands. A potential consequence is that your employer will proceed to suspend you from your work duties to prevent the risk of being fined by the Inspectorate SZW for illegal employment.

Your employment contract

On top of that, it might risk your employment agreement itself. If your employer would need to increase your salary from EUR 2,497 to 3,484 or even 4,752 gross per month, there is a good chance that they would be able to make an argument for proceeding to dismissal.

Note that if you are a European Blue Card Holder, the aforementioned risk does not apply. The European Blue Card only has one salary criterion, which amounts to EUR 5,567 gross per month.

Long-term impact

Permanent residence and nationality

If you wish to continue living in the Netherlands for the long term, you may plan to apply for either an EU long-term residence permit or a Dutch permanent residence permit. You might even hope to acquire Dutch nationality. To qualify for either permanent residency or nationality, among other requirements, you will have to accumulate five consecutive years of legal stay in the Netherlands. This period of uninterrupted residency must exist directly prior to the application for the permanent residence permit.

Break the chain, start again

If you incur a residence gap during this five-year period, your stay in the Netherlands wilI be interrupted. In other words, it will stop being a continuous period of time. If this occurs, you will need to accumulate five years of consecutive legal stay again, starting from the day after the residence gap.

Why you need to avoid the gap

The law offers almost no leniency when it comes to residence gaps. For example, if your employer forgot to renew your permit before the end date, despite you reminding them, it will still cause a residence gap. Likewise, if your employer applies for a renewal of your residence permit but, due to some error, the dates of the employment contracts are not continuous, a residence gap might occur as well, as you were without an employment agreement at a certain time.

Extenuating circumstances such as illness or needing to visit a sick relative will not excuse you in the eyes of the law.

Top tips

Be aware of the end date on your residence permit, and have your employer apply for an extension in time. Your residence permit can be renewed up to three months before the expiration date.

Remember that your residence permit has a “valid till” date – not a “valid up to and including” date – so ensure your employer renews it before the end date.

And when you receive your residence permit, carefully check whether it holds the correct start date of your residency in the Netherlands. This date is included at the back of the residence permit, at the left where it says: “Ingangsdatum verblijfsrecht”. If this date is not correct, and/or if the residence card contains any other errors, you only have four weeks to lodge an objection.
Even tiny errors can have big consequences. It’s better to check and double check.

When things go wrong

In an ideal world, we would all follow the correct process perfectly – but in reality, things can go wrong. If you already have a residence gap, your right to work and residence may already be affected.

If you are in this situation, please contact me for advice on your options.