THE BOTTOM LINE
- Hiring Risk: Employing foreign nationals whose residence permits are tied to a partner carries a significant risk. If the relationship ends and their permit is revoked, their right to work can be invalidated, even retroactively.
- The “Undisputed” Right to Work: For Turkish nationals seeking to build rights under Decision 1/80, “legal work” requires an undisputed right of residence. This ruling clarifies that work performed after a permit has been withdrawn—even while an appeal is pending—does not count towards the one-year threshold for a work permit extension.
- Business Role Is Not a Safeguard: An individual’s important business role, such as being a company director, does not automatically create a new right to stay if the original basis for their residence permit has been lost.
THE DETAILS
This case involved a Turkish national whose residence permit was originally granted based on his relationship with a partner in the Netherlands. Shortly before the relationship ended, he began employment with a new company. Following the breakup, the Dutch immigration authorities retroactively withdrew his residence permit. The individual then applied for a new permit based on “employed work” under the special rules for Turkish workers (Decision 1/80), arguing he had completed the required one year of “legal work.” This set the stage for a crucial decision on what constitutes “legal work” when a prior permit is under dispute.
The District Court of The Hague rejected the applicant’s claim, providing a critical clarification for employers. The court affirmed that to accumulate rights under Decision 1/80, the work must be performed while the individual holds an “undisputed right of residence.” The court found that once the authorities revoked the initial family-based permit, the individual’s right to stay was no longer undisputed. Consequently, any work performed after the effective date of the withdrawal did not qualify as “legal work,” and he therefore fell short of the one-year requirement. The fact that he was appealing the withdrawal did not suspend this reality.
The ruling also reinforces the limited weight given to other factors once the primary legal basis for residence is gone. The court noted that the individual’s right to a private life (under Article 8 of the ECHR) and his role as a director of a separate company had already been considered and were not sufficient to override the withdrawal of his permit. This decision serves as a stark reminder for businesses that the stability of an employee’s immigration status is paramount. Relying on work performed during a period of legal uncertainty or appeal is a precarious strategy that, as this case shows, is unlikely to succeed.
SOURCE
Source: Rechtbank Den Haag
