Residence and Benefits

Lawful residence in the Netherlands in relation to entitlement to benefits

The Minister of Finance has written a letter to the Lower House in which he outlines the legal contours for lawful residence in the Netherlands in relation to benefit entitlement.
He discusses the analysis of the quality of residence permit registration in the GBA and the agreements which the IND and the Belastingdienst have made. The letter is the result of a list handed to him by the Lower House member Bashir with a list of problem cases surrounding the granting of benefits and a valid residence permit.

Minister of Finance letter, April 17, 2012,

Dear Chairman,
During the general Belastingdienst discussion of February 9, 2012 Mr. Bashir (SP) handed me a list of problem cases surrounding the granting of benefits and valid residence permits. At some point during the general discussion I indicated that I could name percentages of the cases wherein the benefit is stopped justly or unjustly. In this letter I will first outline the legal contours around lawful residence in the Netherlands in relation to benefit entitlement. Then I will discuss the analysis of the quality of registration permits in the GBA and the agreements which the IND and the Belastingdienst have made. Finally, I will indicate what percentage of the problem cases which Mr. Bashir has delivered are entitled to a benefit. Mandatory valid residence permits as taken from article 10 of the Foreigners Act 2000 has the consequence that foreigners who are not lawfully resident in the Netherlands cannot claim a benefit (the so-called coupling principle). In addition article 9 of the General law income-related schemes determines in that the partner must also legally reside in the Netherlands in order to be entitled to a benefit. It also states that fellow residents must also legally reside in the Netherlands, since in the income-related scheme it is stipulated that the income of other household members are important in assessing claims. This means that for all benefits the applicant and any partner can only claim a benefit if both possess valid residence permits. For the rental allowance it is also stipulated that everyone in the household, thus including juvenile children must have a valid residence permit. Indeed, in the rental allowance Act is also stipulated that the income of other residents, including children count for the income determination. If these residents actually have income is not relevant. An exception for this only applies for underage children without residence title, who can be classified as single foreigners as intended in the Scheme for benefits for asylum seekers and other categories of foreigners 2005. In that case the entitlement to the allowance exists until the moment that the right to asylum, as intended in this ruling ends.

Analysis quality of registration residence permits in GBA
In recent periods there has been consultation with the IND over the quality of the residence permits which are included in the GBA. On the basis of a representative sample the IND and the Belastingdienst have found that in almost all cases the residence status is properly registered in the GBA. This applies to both adults and children.

Working arrangements IND and Belastingdienst
Given the finding that the residence status as registered in the GBA is of a reliable quality, the Belastingdienst uses this registration to determine if there is entitlement to a benefit. If there is a person without a valid residence permit, then there is no entitlement to a benefit for the applicant or the benefit partner. This applies for all benefits. If this person (adult or child) is a fellow resident without a valid residence permit then there is no entitlement to a rental allowance, unless the fellow resident is a child which is considered a single foreigner as described above. Save for this exception, in all cases the benefits will be retroactively stopped and any amounts paid recovered. The Belastingdienst/Toeslagen reports on the decision the reason for discontinuation and refers to the information number of the IND. If the individual disagrees with the decision concerning the residence permit, then they must contact the IND. If the IND indicates that there is still a valid residence permit, then there is again entitlement to a benefit. With regard to foreign nationals with a valid residence status who have a newborn child which was born in the Netherlands, I have – unlike children not born in the Netherlands – established a leniency period of three months. Children born to foreigners in the Netherlands do not automatically receive a residence permit.