Where is there left?

-- Before I start, getting married does not make any difference. The Dutch government does not make it any easier for spouses of Dutch citizens to get residence than it does for non-married partners of Dutch citizens to get residence--

In the last week, my view on our future has started to shift. I feel as if the screws that held my once relatively certain future in place are being loosened. While at first this was terrifying, the thought of it has now become somewhat invigorating.

Last week, 6 months and one day after submitting our application, we got word that our request for Robert's residence permit had been denied. The legal arguments are complicated, and I will deal with them in a bit, but the long and the short of it is that Robert is now illegally in the Netherlands. Luckily, we can appeal within four weeks, and if we do Robert's illegal residence here is converted to legal residence, retroactively. Thus, we will appeal and Robert will be able to stay here pending that decision.

Although, to be honest, this decision has not changed anything - Robert still cannot work, we still do not know if he will be able to stay, EU law is still not being applied properly - the decision, and especially the reasoning of the government, has given rise to doubts about whether the Netherlands is the best place for us.

A short, and hopefully clear, explanation of the decision in legal terms:

When Robert and I applied for his residence permit back in May of 2010, we decided to apply under EU law. Now, as you might be aware, EU law has direct effect in all countries of the Union and thus it is rather inaccurate to state that we are applying "under EU law", as what is EU law in this respect is actually Dutch law. However, since the Dutch authorities do not yet recognize it as such, I will refer to the type of application we submitted as an EU law application.

Getting a residence permit for Robert under EU law is superior to one under Dutch law in many ways. First, the EU one does not require me to have a permanent contract and make 1500 euro per month. Second, it does not need to be renewed a year from now (a process that makes us jump through many more hoops). Third, it costs around 40 euro to apply for-- in contrast to the 800 euro the Dutch application process costs. You lose the 40, 800 euro respectively regardless of whether you are granted the permit or not.

The idea of an EU residence permit for the partners of Union citizens arose from the idea that it was important to allow Union citizens to bring their partners with them when they moved to another EU country. Freedom of movement is, after all, a core principle of the Union and it would frustrate this freedom if one was not allowed to bring their family with them when they moved. In December of 2009, the right to family life that was implicitly protected with this permit, gained explicit protection under the EU Charter of Fundamental Rights. All Union citizens got the right to family life.

The Netherlands interprets the concept of Union citizens' rights in an odd way. The Dutch government may begrudgingly recognize that Dutch citizens are also EU citizens, but the rights of an EU citizen they do not have! At least not automatically. The Dutch government argues that Dutch citizens do not enjoy Union rights until they have "activated" these rights. Activation can be obtained by exercising your freedom of movement or freedom to provide services. So, for example, if a Dutch citizen has lived in another EU member state for more than 6 months, that Dutch citizen has activated his EU rights. When he returns to the Netherlands, he will enjoy rights as a Dutch citizen and as an EU citizen.

Our application for Robert's residence permit was based on the fact that I have provided services in other EU member states. I have provided interpretation services to businessmen headquartered in the UK. I have done this more than once and I have done this over a considerable period of time.

The Dutch immigration authorities (the IND) held that not only was this impossible but even if it was true, it would not be sufficient to grant Robert a residence permit.

First, the IND held that my provision of services was not possible. How did they assess this? Well, a few weeks prior the IND has requested information from me on my daily activities. They informed me that in order to make their decision they needed information on my professional activities, educational activities, any volunteer work I do, how I spend my free time, etc. I provided this information, feeling like I was endeavoring to convince the government of my worth as a person. Look how good I am, I volunteer at the prison and of course I do not engage in any activity that might challenge government policy!

The decision that I did not provide services to other member states was based on the fact that I am a full-time student, worked part-time at the university and also (contentiously, I guess) co-run On Point. According to the IND, it was simply impossible - using a 40-hour work week as a point of departure - that I could do all these activities at the same time.

Rejection

I think it would be very interesting to study what the psychological impact is of being rejected by your own country. Not only is my right - as a Dutch citizen - to live with the man I love not recognized; but also my case is not reviewed with an ounce of genuineness. Does the Dutch government genuinely believe that there are only 40 hours in a week in which one can work? Does the Dutch government genuinely believe that it not necessary that most people during these times work more than 40 hours a week make ends meet? Does the Dutch government genuinely believe that it is impossible to have motivated, ambitious students who study full-time and work at the same time?

Further, the IND did not use the correct legal standard to review the services we (contentiously) provided. The standard the IND used was "substantial"; I had to provide a substantial amount of services to other EU member states in order to enjoy my rights as an EU citizen. According to the IND, my interpretation work was not "substantial" enough.

According to our reading of the EU case law on this issue, the standard is actually the potentiality of providing services. Me potentially providing services to other EU member states should be enough. The fact that I have indeed already provided services and the fact that On Point is clearly oriented toward an EU market is enough to satisfy the EU requirement. On appeal we will argue this and, if it gets that far, request the court send a preliminary question to the European Court of Justice on this issue.

Where is there left?

Although we will appeal this decision all the way up, we cannot help but consider the fact that the Netherlands is becoming less and less hospitable to foreigners. Even if we were to eventually get a residence permit for Robert, his right to stay here would not be secure. The new government is talking about making it harder to renew residence permits and about making it easier to revoke permanent residence permits after they have been issued. Robert's existence here would constantly be uncertain, if things go the way the new government wants them to. Moreover, although it is still a hypothetical, my existence here is also not certain. One of the main campaign points of the PVV was to make it possible to revoke Dutch citizenship. The proposal was only applicable to people in certain circumstances - they would have to have been convicted of certain, serious crimes and they would have to hold a second passport besides their Dutch one. A similar law has recently been proposed in France. Now, I definitely do not plan to commit a serious crime any time soon, but the fact is - I do have other passports besides my Dutch one. It would be possible that I could end up in a situation where my Dutch citizenship is revoked. Poof! There it goes!


I do not know if I want to live in a country where my citizenship means so little. I do not know if I want to live in a country where other people's rights as humans are ignored. But where is there left? This irrational, fascist anti-immigrant sentiment is sweeping Europe, the United States and Australia.

Stay and fight?

I do not like the idea of fleeing to a new "paradise". I hold no illusions that such a paradise exists. There is a certain duty one has to do what one can to work toward justice in the face of injustice. This is one reason the Netherlands still has a hold on me. This, and the connected reasons, that I love the beauty of the wintry Utrecht streets, that I have dear friends and family here. However, if it turns out to be impossible for Robert to stay here - or even if it continues to be so difficult for Robert and I to build a live here - we will have to work toward justice in a different country. We might just have to "activate" my rights as a Union citizen in the only way the Dutch government acknowledges at the moment - by living in another EU state (and even that they are talking about cracking down on based on the repeatedly rejected argument that exercising those protected rights is a 'abuse of rights'). The UK is looking particularly attractive at the moment: Robert could work there and live there with me without any problems. A right to work and reside is all we are asking for.

Another option is of course to go back to the US. To be honest, I am a bit afraid to go back. The wave of red that swept the country at the beginning of this month is enough to shake up any women who has gotten quite attached to her reproductive freedom. Besides, without any US degrees I truly do not know what I would do there. Anyone know of an open PhD position? :-)

At the moment, both of us are trying to concentrate on the day-to-day work that must be done. I have exams and teaching; Robert has appeals work to do. The support that we have gotten and continue to get from friends and family is amazing. We are so grateful for this. We appreciate any thoughts, suggestions, advice you have while we try to negotiate these choppy waters.

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