CONFUSED! DO I NEED MVV????

I am a non EU spouse of a Dutch citizen. We met, married and live in UK, where he has been exercising his EU treaty rights (ie working) over the past year. We now wish to return to live in Holland under the EU policy. The question is...Do I still have to apply for an MVV, even though my husband is returning to Holland as an EU national, who has been exercising his treaty rights in another EU state for over six months?
The Dutch IND website is not very clear on this matter, so we would really appreciate some feedback. Thank you.

You will have to contact the Dutch embassy, but if you require a visa for the netherlands it is likely that you will have to obtain the MVV. Those who don't require visas can generally enter the country and change their status. Check with the embassy to be sure.

You have the choice.

You can either go in as spouse of a Dutch citizen or (under EU law) as spouse of a Dutch/EU citizen who has been exercising treaty rights.

My sense is that going in as EU will be easier.

There is a difficult to use and unclear Residence Wizard at IND. To use it, tell the wizard that your spouse if German (since Dutch/Netherlands/Holland is not included in the country list). One of the panes (pains?:D) you will eventually find says...

Dutch citizens
In their own country, Dutch citizens are in principle not regarded as citizens of the Union. For this reason the rules for citizens of the Union are not applicable to them.

Exception
An exception to this rule is if Dutch citizens have previously made use of the right of free movement of people in another EU/EEA member state (see also 'frequently asked questions' ).

And from the FAQ

Why are Dutch citizens unable to make use of the favourable EU admission rules if they want their family member to come to the Netherlands?

In general, Dutch citizens cannot make use of the EU admission rules as they are specially intended to make it easier for citizens of the Union with family to take up residence in another member state. This means that, for example, a Frenchman and his family can refer to these rules if they want to take up residence in the Netherlands. In the case of a Dutch citizen or a person who is not a citizen of the Union and wants to bring his family to the Netherlands, the normal conditions of the Dutch admission policy apply. For this see the “Verblijfwijzer”, I want to bring someone to the Netherlands, my situation, for how long, which nationality, reason for stay, marriage and relationship, etc.

In the case of family reunification, Dutch citizens only come under the EU admission rules if they fulfil the following conditions:

* the Dutch citizen has resided in another member state with the family member according to the EC Treaty; and
* the Dutch citizen takes up residence again in the Netherlands as an economically active or economically non-active person.
* the Dutch citizen carries out, for remuneration, services for service receivers established in other member states and has not moved his main residence outside of the Netherlands. Think here of a lawyer, a specialist or a technician who installs a machine, for example.

Thank you for that. But you're right. When I try the wizard on the Dutch IND website, it doesn't give the option if your partner is actually Dutch. I know for certain that to go back as a spouse of a Dutch citizen, I WILL require an MVV! I think we stand a better chance with the EU route. I'm completely hopeless in speaking or reading Dutch, and that's why I'm not too keen on the MVV.
It clearly states that if a Dutch national has de-registered from Holland and has been exercising his EU treaty rights in another EU country for a certain length of time, then he is free to re-enter Holland with his family under the EU umbrella. This should mean that I would not require an MVV. But where the Netherlands is concerned, the practice does not necessarily reflect the theory

What are the requirements for a MVV? Why do you think you will require one?

Rozen,

Yes I have looked at the wizard and you do require an MVV and you would be better going the 'EU' route. 'Directive/2004/38' is quite right about this - the dutch position reflects the UK position under the Immigration (EEA) Regulations 2006 where reg 9 provides for a similar rule. It may seem illogical that the nationals from the home country cannot benefit from the free movement rules, but it seems clear. The idea (I think) is that the rules are only needed for nationals (and their partners) from 'other' countries. Home nationals will be covered by the rules under domestic (in your case Dutch) law.

However, you clearly fall within the exception to this rule, so you should be treated the same as if you were a partner of, say, a German national. However, the extract from the FAQ is, I think, unclear. Should there be another 'and' between the second and third requirement? I don't really understand whether you need to satisfy all three and, if so, what the third requirement is really getting at. Unfortunately, you would need someone to look at the Dutch law implementing the Directive. It may be that this FAQ is not correct ( or at least ambiguous). However, certainly on the basis of the Directive, you ought to be fine.

Seems harsh people applying for MVV (even family members) have to sit the test!

I was looking into all this a few days ago for a related reason. Oscar (my UK reg civil patner) is non-EC and we want to apply for a Schengen visa to visit Holland (I am British). The wizard says we don't need one for Holland but we would like one anyway just to be sure we don't get problems at the airport and also so we can go to other less liberal
Schengen countries more easily. However, to apply for one he needs an EEA Family Permit. He cannot get one as I am British and he has a UK residence permit under UK law (ie he cannot rely on EC law). Perhaps this is because he doesn't need a Schengen visa to go to Holland but it seems a bit unfortunate to me. Does anyone have any thoughts on this?

Thanks
Alan and Oscar

alan and oscar wrote: Oscar (my UK reg civil patner) is non-EC and we want to apply for a Schengen visa to visit Holland (I am British). [..] However, to apply for one he needs an EEA Family Permit. He cannot get one as I am British and he has a UK residence permit under UK law (ie he cannot rely on EC law).

If you have a registered partnership and Oscar is here legally, that is more than enough. Oscar definitely does not need to be here on an EEA Family Permit to legally benefit as a partner of an EU citizen. If anyone tells you differently, they are mistaken.

In answer to Directive/2004/38/EC. The requirements for MVV are basically general eg. passport, proof of relationship, proof of residence in applicant country, income and proof of passing the civic integration test (in Dutch, by the way ).

I think I will require one because I am a non EU spouse of a Dutch citizen. Although the 'verblijfwijzer content' on the Dutch IND website has the following statement:

"Is it right that there is no requirement for authorisation for temporary stay for family members of citizens of the Union?

Are you married or do you have a registered partnership with a citizen of the Union? Then you do not need to apply for authorisation for temporary stay. You may enter the Netherlands at the same time as your partner. This also applies to a number of other family members. In the case of family members of students this only applies to the spouse or registered partner. For more information, see under ‘Family member of a citizen of the Union’. If you are not married or do not have a registered partnership than you will need an MVV".

At no point does it mention that this rule may also apply to Dutch citizens who have left the country and wish to return as EU nationals with their family (as regards the MVV). I have tried in vain to get confirmation from the embassy regarding this matter. I would be quite happy to apply for the MVV, were it not for having to pass the civic integration test. But that apart, I think we should have the right to choose how we can go back, if at all there is a choice...

Thank you to Alan and Oscar for your imput. I too do not have an EEA residence card, as I already had Leave to Remain before I met my husband, and it's still ongoing. I have always assumed that my visa and my marriage certificate would be enough to prove my entitlement to the benefits of being the partner of an EU national. Now even that has been thrown into doubt.

Which begs the question, is it possible to apply for an EEA permit while the UK visa is still valid? If I was confused before......

Rozen,

Sorry my related question confused the situation for you. I am not sure whether it is possible for you to get a UK issued 'EEA Family Permit' as well as having a residence permit under UK law but I don't think you need one. It might be helpful if you were applying for a schengen visa but you do not need a schengen visa. You either need an MVV to enter the netherlands OR you can enter without a visa under the directive. I think it is pretty clear that the latter is the correct position (ie you don't need an MVV.)

Have you thought of emailing a local netherlands consulate in the UK to see if they can confirm? The details are via the link on the right hand side
once you access the address below.

http://www.netherlands-embassy.org.uk/visas_mvvs

By the way, I wonder if you a little confused about the difference between a visa and a residence permit. If you have leave to remain in the UK, that would be a residence permit not a visa. You needed a visa to enter the UK in the first place. Can you clarify what basis you are in the UK?

[By the way, Directive/38/2004, the link above is where the info comes about needing an EEA family permit to apply for a schengen visa (without having to pay, at least).]

Alan and Oscar


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You are right, the web page http://www.netherlands-embassy.org.uk/v ... /visa_fees does say that they will give you it free if you have an british EEA family permit. But they are also required to issue it free in lots of other circumstances. The web sites are often really incomplete and ambiguous, which is a shame since it could save everyone lots of grief if they did it right once.

Just send in your application with the passport of your EU spouse, your marriage certificate, and a note indicating that "This is an application for the family member of an EU citizen. As such, no fee is enclosed and I understand it will be considered on the basis of an accelerated process". If you have any problem with the result, immediately contact the EU's free Solvit http://eumovement.wordpress.com/eu-resources-page/ center.

Thank you all for your replies. I think that once we have apostilled my birth certificate(I was born in England, but I'm not British....but that's another story) and our marriage certificate at the FCO. We will go ahead and apply, and hope for the best.

I have since emailed the Dutch embassy as regards this matter, but there has been no reply so far. I've tried calling them, but the automated recording never puts me through to an operator

We will definitely contact Solvit, should there be a problem (hope not!) And I will certainly let you know what happens in future. I'm glad I came across this forum, and wish everyone good luck Thank you.

Dear Rozen,

I think Directive 2004/38/EC's reply may have been directed at me rather than you. (Thanks for the info, Directive 2004/38/EC)

Why do you not try the numerous Dutch consulates located in the UK. They have emails and phone numbers and you may be able to speak to a real person. Follow the link in my previous message. I would ask for confirmation that you are able to move to Holland without visa on the basis of the Directive (on the basis that your Dutch spouse has been living in England but wants to return to Holland).

Alan and Oscar

Hi everyone!

I'm happy to report that indeed I do NOT need to apply for an MVV to return to Holland with my Dutch husband, as he has been exercising his EU treaty rights by working in another EU state (UK), even though I myself am a non-EU national. He would be considered as an EU national, rather than as a Dutch citizen, as he falls under the 'exception' rule of the 'verblijfwijzer content'.

I will, however, have to apply for a residence document by filling in an 'Application for verification against Community Law'. I hope this helps for anyone who was in doubt about applying for an MVV as a partner of a Dutch national who has been exercising his EU treaty rights in another EU state.

Thank you to all who responded with advice. This is such a great forum!

Well done, we are delighted for you.

alan and oscar

Rozen,

really happy to hear about your result. When you go to Holland and apply for "Application for verification against community law" you will come across local officials who will not know the full facts of exercising treaty rights in another country and that your husband should be treated as an EU rather than a dutch citizen and you may have to go through a lawyer as the process gets really frustrating! I'm british and my wife isnt, we spent a year in holland dealing with this situation!

But dont worry, at the end of the day you will be with your husband, in holland, they wont have any right to deny you a permit or cause any hassles for you in the long term, so good luck!

Hmmm..... And just when I thought it was safe to go into the water.... Thank you killinghall for that piece of information. After all the stress I endured wondering how I was ever going to pass the Dutch civic intergration test (or whatever they call it), I was really relieved to learn that I wasn't going to have to worry about my limited Dutch in order to pass for an MVV application.

Now, as it turns out, I might have to spend the first few months or so, stressing about this 'community law' application. But I think we will take up your advice, and use a solicitor instead. Then maybe I can spend more time polishing up on my Dutch language skills Thank you again for your advice and suppport.

Thank you as well, to Alan and Oscar!

If I were in your position, I would just put together an application and send it in. Write a cover letter that explains that you are applying on the basis of European law (mentioning Directive 2004/38/EC) because your husband has been exercising his treaty rights by working in the UK.

I think it is very unlikely that they will turn you down, though there is a small chance. Applying and being turned down is not a problem as you have a pretty fundimental right of free movement in the EU. And if they do turn you down, you can always then pay a lawyer.

Note that the EU offers a free service which can confirm (or explain) the legal rights you specifically have in this regard. Their answers are often (but not always) very helpful. http://ec.europa.eu/citizensrights/

After that, if the Dutch are not operating properly, you can check with EU's Solvit group who will try to work with the national or local government to advocate on your behalf http://ec.europa.eu/solvit/

Thats a very fair point Directive, however in Holland you dont apply by post but you have to do it in person at places like the local town hall and the local 'foreign police station'; the staff at these places check through everything and don't accept any applications that might be out of the ordinary e.g. the application form might say you're not treated as an EU citizen if you're dutch, you could argue your case until you go blue in the face but until they accept it, it aint going anywhere! thats why I suggested going through a lawyer.

anyway, i dont want to dampen spirits, at the end of the day, you have rights, the law is on your side, you will get a 5-year EU residence card in the end, it might just take some hassle

and yes, the SOLVIT people are very helpful, although understaffed! But they do have regular meetings with the IND in Holland and straighten them out on EU laws whenever needed.

killinghall wrote:Thats a very fair point Directive, however in Holland you dont apply by post but you have to do it in person at places like the local town hall and the local 'foreign police station'; the staff at these places check through everything and don't accept any applications that might be out of the ordinary e.g. the application form might say you're not treated as an EU citizen if you're dutch, you could argue your case until you go blue in the face but until they accept it, it aint going anywhere! thats why I suggested going through a lawyer.

I am curious when you made your application. Was it before April 2006?

Did you still have to apply in person when you used a lawyer?

I made the application in .. June 2005, I'm British but my wife is from Pakistan. She had a 2-year spouse visa for the UK and arrived in May 2005 but then I was seconded for a year to Holland so we went there in June

I didnt use a lawyer, as my case is a bit straightforward. I thought Rozen's might not be so straightforward because of having to convince the authorities that her husband should be treated as EU and not dutch.

killinghall wrote:I thought Rozen's might not be so straightforward because of having to convince the authorities that her husband should be treated as EU and not dutch.

It is actually pretty straight forward.

In the case of Surinder Singh (Case C-370/90 The Queen v Immigration Appeal Tribunal et Surinder Singh, ex parte Secretary of State for Home Department), the European Court of Justice ruled that if EEA nationals exercise their community rights in another Member State; on their return to their own country they will be entitled to the same community rights, without discrimination, as any other EEA national. In particular, reference was made to the entitlement of ‘family members’ to join the EEA national on their return to their own country.

The significance is that ‘family members’ including a spouse can rely on their right in EC Law to join you in your own country. It is EC Law, which regulates your spouse’s entry, NOT national immigration rules.

This ruling has effect in all EU countries, including the Netherlands. National governments are very aware of the case, as can be seen in the careful way they phrase things on their web sites related to their own citizens.