AMSTERDAM — The Netherlands could have to pay significant damages to expats who can show they have suffered as result of the failure to implement a new directive on a permanent residence status for non-EU citizens, an immigration lawyer warned on Friday.

"The argument by the Immigration and Naturalisation Service (IND) that the directive hasn't been implemented in 17 of the 25 EU member states doesn't hold water," Michiel Tjebbes, a partner with Everaert Immigration Lawyers, told Expatica.

No legal challenges have yet been mounted in relation to the IND's refusal to grant permanent EU residence status. "But my fingers are itching, as I would very much like to start one," Tjebbes said.

He maintained that there is nothing stopping the IND from implementing the directive now.

The IND denied it is dragging its feet on the issue and said that the delay is a procedural matter. It conceded, however, the EU directive (2003/109/EC on third-country nationals who are long-term residents) should have come into force in the Netherlands and 16 other countries by 31 January 2006.

The directive establishes the right to a new, permanent EC residence status for migrants from outside the EU (described as 'third-country nationals'). To be eligible, a migrant must be in possession of a valid residence permit and reside legally in an EU member state for an uninterrupted period of five years for the purpose of employment or to be with a partner. Asylum seekers, refugees and EU citizens are not eligible. The applicant must have a fixed and regular income and health insurance.

The goal of the directive is to make it easier for long-term non-EU residents to settle in another member state.

To explain how the system should work, Tjebbes cited a fictional example of an Argentinean professor living and working in the Netherlands who is offered a position at a prestigious university in Italy. The job is dependent on having the permanent EU residence status.

"If the person can prove that the IND's refusal to implement the directive has had severe financial and professional consequences, he or she could take legal action against the State to seek damages," Tjebbes said.

Tjebbes said he hoped such a case will be taken soon to force the IND to reconsider its position.

The IND has posted a statement on the English section of its website in relation to the directive. It said that advice is still required from the Dutch Council of State on "necessary amendments to the legislation concerning aliens". Then parliament (de Tweede Kamer) must make a number of choices, for example about the form that the application is to take.

"As a result, applications for permanent EC resident status cannot yet be processed," the IND said.

Immigration Lawyer Patrick Rovers of Van Velsen C.S. said that the Netherlands is far from being alone in this. Of the 25 member states, 17, including the Netherlands, have yet to implement the directive. Only Austria, Poland, Slovakia, Slovenia and Lithuania have done so. The UK, Ireland and Denmark opted out from the start.

Rovers said the Netherlands has a fairly good record when it comes to implementing EU directives but "some files are not so interesting and are left at the bottom of the pile". There is a constant debate about whether EU directives are automatically binding on member states or whether the only come into force once a national parliament has passed a law to incorporate it.

Tjebbes argued that a court case could prove the directive can be applied at this stage. He also pointed out that the member states have known this directive was pending for several years. The deadline was in January this year.

"If each of the 17 states were to argue they have to wait for the other 16 before acting, the directive would never come into operation," Tjebbes said.

It is unclear how many people will seek to avail of permanent EU residence status, as long-term non-EU citizens are generally eligible to apply for citizenship in the European country they reside in after five years. But it may appeal to people who want to retain their original nationality.

[Copyright Expatica News 2006]