Withdrawal of residence permits due to ‘danger to public order’

The “sliding scale” in Dutch law

If a foreigner commits a crime, the Immigration and Naturalization Service (IND) can withdraw his or her residence permit due to ‘danger to public order’. In order to determine whether a final judgment has implications on lawful residence in the Netherlands the so-called principle of the sliding scale (glijdende schaal) from the Aliens Decree (Section 3:86) is used.[1]

According to the principle of the sliding scale there is a correlation between the length of the sentence imposed and the duration of lawful residence in the Netherlands. The longer a foreigner lawfully resides in the Netherlands, the more severe the punishment should be in order to be able to terminate lawful residency. Even if the IND intends not to renew a residence permit or to impose an entry ban, reference can be made to the sliding scale. If the court imposes a penalty that exceeds the norms in the sliding scale, that may be a reason for the IND to withdraw the residence permit.

The duration of lawful residence and the gravity of the punishment are the two cornerstones of the sliding scale. In short, the sliding scale is a table in which the amount of the penalty imposed and the duration of the legal stay in the Netherlands are weighed against each other.

The IND uses three sliding scales:

  • The first scale relates to offenses with a criminal threat of a minimum of three and a maximum of six years in prison;
  • The second scale relates to offenses with a criminal threat of more than six years in prison;
  • The third scale applies if the foreign national has been convicted of a crime at least three times.
Duration of stay Penalty measure (scale 1) Penalty measure (scale 2) Penalty measure (scale 3)
less than 3 years: 1 day 1 day 1 day
at least 3 years but less than 4 years: 5 months 4 months and 2 weeks 4 months
at least 4 years but less than 5 years: 7 months 6 months 5 months
at least 5 years but less than 6 years: 15 months 12 months 6 months
at least 6 years but less than 7 years: 18 months 15 months 7 months
at least 7 years but less than 8 years: 22 months 18 months 8 months
at least 8 years but less than 9 years: 27 months 22 months and 2 weeks 9 months
at least 9 years but less than 10 years: 33 months 27 months 10 months
at least 10 years but less than 15 years: 40 months 30 months 12 months
at least 15 years: 65 months 48 months 14 months

Different rules

  • If the foreigner has been lawfully resident in the Netherlands for less than three years or more than ten years, different rules apply.
  • If the foreigner has a right of residence for less than three years, offenses with a criminal threat of two years or more are also counted.
  • If the foreigner has a right of residence for more than ten years, not all offenses may be included in full in the assessment. Only offenses from the Opium Act with a criminal threat of at least six years and offenses as referred to in Article 22b of the Criminal Code count. This concerns offenses with a criminal threat of at least six years, while the offense must also have seriously infringed on the ‘physical integrity of the victim’.
  • Regarding the application of the sliding scale, there is only legitimate residence in the Netherlands during the period in which the foreigner is actually in possession of a residence permit. Among other things, the period in which he/she was awaiting a decision on his/her application for residence, or the period in which she/he was awaiting a decision from the judge, are not included in determining the duration of your lawful stay in the Netherlands.

Different rules for specific groups:

Separate rules apply to many specific groups of foreign nationals, including those for:

  • People who are the direct family of a national of an EU country;
  • Minors with one Dutch parent living in the Netherlands;
  • People who reside in the Netherlands under the restriction of staying with a family member;
  • Foreign nationals with an EU residence permit for long-term residents;
  • Turkish aliens who reside in the Netherlands on the basis of agreements between Turkey and the European Union.

Old convictions

If the IND wants to impose a measure solely on the basis of old convictions, older, more flexible standards may apply. The sliding scale has been changed several times. The last major change was implemented on 1 July 2012. If the IND objects to your offenses prior to 1 July 2012, while after 1 July 2012 you have no longer come into contact with the law, the old standard from before 1 July 2012 applies. This can be of great importance. This standard is considerably more flexible. Moreover, on the basis of this standard, the right of residence cannot be terminated after a lawful stay of twenty years.

Which penalties count?

Only the unconditional part of the prison sentence imposed by the judge is taken into account. In addition, youth detentions, community service punishments, and measures such as TBS[2], ISD[3] or placement in a (youth) institution can also be taken into account in the assessment. Sometimes convictions abroad are also involved in decision-making.

Lawyer in case of dispute with IND

What to do if the IND wants to withdraw your residence permit or does not want to renew it? Is your residence permit in danger?

The IND can not simply withdraw a residence permit. This is preceded by a procedure. You will first receive an intention in which the IND explains that they intend to withdraw your residence permit and the reasons for this. You can then submit a written opinion within a certain period (often four weeks). In this way you can respond to the intention of the IND. You can also explain your personal circumstances, because the IND is often not aware of this (and has not yet taken this into account). It is then up to the IND to take a decision. The IND can do two things: do not implement the intention, or decide to withdraw your permit.

In many cases, you can then lodge an objection, after which you may be able to go to court. This often also applies in the case of the imposition of an entry ban.

If you want to prepare and submit an opinion or objection, then you should contact an immigration lawyer who will request your complete file from the IND. This lawyer knows exactly which aspects of your story are important and is aware of the latest regulations. Depending on your income, you may also be eligible for funded legal aid. The majority of the costs will then be reimbursed.

Examples of which scale would apply:

  1. Mrs. A from Iraq has had a residence permit in the Netherlands since March 2013. On April 2018, Mrs. A will be sentenced to six months’ imprisonment for money laundering. The IND wants to revoke Mrs. A’s residence permit because of this conviction. Is Mrs. A’s residence permit in danger?

The answer is negative. Money laundering can be punished by a maximum of six years in prison. The first sliding scale therefore applies. Mrs. A has been lawfully in the Netherlands for more than five years and less than six years at the time of the conviction. Mrs A’s residence permit is not endangered because his sentence is less than 15 months of unconditional imprisonment.

  • Mrs. B from Sudan has had a residence permit since 1 March 2012. She is married to a Dutch citizen, her child is of Dutch nationality, and she is receiving medical treatment in the Netherlands. In 2019, she was convicted five times for theft with burglary, with a total of eleven months of unconditional imprisonment being imposed. The IND wants to revoke Mrs. B’s permit because of the five convictions. Is his residence permit in danger?

The answer would be positive. Theft with burglary is punished with a maximum of six years in prison. Normally the first sliding scale applies, but in this case Mrs. B has been convicted five times. In that case, the IND can refer to the third sliding scale. Mrs. B. has been in the Netherlands for more than seven and less than eight years during the last conviction. Mrs. B’s residence permit is in danger because his total prison sentence is higher than eight months.

Weighing of interests: However, in the above-mentioned case the IND must always weigh up the interests of the alien on the one hand and the interests of the state on the other. The main focus is on the family and private life that the foreign national has built up in the Netherlands. This is stated in Article 8 of the European Convention on Human Rights. The IND has to demonstrate in every case that the measure is proportional and balance it against the personal consequences for the foreign national, some of whom have been in the Netherlands for several years and they have families in the country.

Author: Shabnam Tautan

[1] Vreemdelingenbesluit 2000 (Vb 2000)

[2] TBS is a treatment measure that the court imposes on people who have committed serious crimes and suffer from a psychiatric illness or disorder. This disorder influences their behaviour to a greater or lesser extent. The judge therefore does not hold them fully responsible for their actions.

[3] The measure taken in an institution for systematic offenders, also known as the ISD measure