The Bottom Line
- Foreign national employees with Dutch permanent residency can still be surrendered to other EU member states to face criminal prosecution.
- A potential conviction abroad can create a “real risk” of losing Dutch residency rights, a key factor that prevents non-citizens from being treated like Dutch nationals in surrender proceedings.
- This ruling highlights a dual risk for companies employing non-Dutch senior staff: they can be removed for foreign prosecution and may subsequently be barred from returning to the Netherlands.
The Details
In a case with significant implications for international employees and their employers, the District Court of Amsterdam has permitted the surrender of a Turkish national to Austria under a European Arrest Warrant (EAW). The individual, a long-term Dutch resident with a permanent permit, was sought for prosecution in Austria for serious offenses, including participation in a criminal organization and blowing up ATMs. His defense argued that due to his strong ties to the Netherlands, he should be treated like a Dutch citizen, which would guarantee him the right to serve any potential prison sentence in the Netherlands.
The court’s decision hinged on a crucial two-part test in the Dutch Surrender Act for equating permanent residents with citizens. The first condition, requiring at least five years of uninterrupted legal residence, was easily met. However, the case turned on the second, more forward-looking condition: whether there was a clear expectation that the person would not lose their right to reside in the Netherlands following a conviction in the foreign country.
This is where the argument for protection fell apart. The court sought advice from the Dutch Immigration and Naturalisation Service (IND), which concluded that the seriousness of the alleged crimes made revoking his residency permit a distinct possibility. The IND noted that the individual was already considered a repeat offender in the Netherlands, further strengthening the case for potential revocation. The court determined that this possibility created enough uncertainty to fail the second part of the test. Because there was no clear expectation that he would retain his residency status, he could not be treated as a Dutch national, and the court approved his surrender to Austria.
Source: Rechtbank Amsterdam
