Criminal conviction and residence permit: when can the IND withdraw it?

A criminal conviction can cost a foreign national their Dutch residence permit, but not automatically: the Immigration and Naturalisation Service (IND) compares the unconditional sentence with the length of your lawful residence under the sliding scale (glijdende schaal) in Article 3.86 of the Aliens Decree 2000 (Vreemdelingenbesluit 2000, Vb). After ten years of lawful residence the IND will in principle no longer refuse or withdraw a permit on public order grounds, except for serious offences listed in Article 22b of the Criminal Code and serious Opium Act offences.

EU citizens and their family members fall under a different, stricter test from Directive 2004/38/EC. In every case the IND must also weigh your family and private life under Article 8 of the European Convention on Human Rights (ECHR).

Who decides on your residence after a conviction?

The criminal court decides guilt and sentence; the IND decides separately whether you may stay, on the ground of public order (openbare orde). The powers are in the Aliens Act 2000 (Vreemdelingenwet 2000, Vw): Articles 18 and 19 for a fixed-term regular permit, Articles 21 and 22 for a permanent permit and Article 32 for an asylum permit.

The IND generally works from a final (onherroepelijk) conviction. A penalty order from the Public Prosecution Service (strafbeschikking) that you accept also counts. An acquittal normally removes the immigration risk; a conviction does not end your residence by itself, because the IND must still apply its own test.

How does the sliding scale work?

The longer you have lived here lawfully, the heavier the unconditional sentence must be before the IND can refuse or withdraw your permit. The scale in Article 3.86 Vb has three tracks: offences with a statutory maximum of six years or less, offences with a maximum of more than six years, and repeat offending (at least three offences), where the thresholds are lowest.

The table shows selected bands; Article 3.86 Vb has a threshold for each year up to ten years. The IND adds up the unconditional parts of all sentences and measures; community service counts through the replacement detention, and offences committed abroad can count too. Lawful residence is measured up to the date of the offence.

Are you protected after ten years of lawful residence?

Largely, but not absolutely. After ten years the IND does not refuse or withdraw on public order grounds, unless the offence is listed in Article 22b of the Criminal Code or is an Opium Act offence carrying a statutory maximum of six years or more.

That exception makes drug convictions especially risky for long-term residents. In ECLI:NL:RVS:2023:1071 (16 March 2023) the Administrative Jurisdiction Division of the Council of State (Raad van State) upheld the withdrawal of a permanent permit, with a ten-year entry ban, from a man who had come to the Netherlands young but had a long record, including a hard-drugs conviction that fell within the exception.

Crossing the threshold makes withdrawal possible, not automatic. The IND must still make an individual assessment, including the Article 8 ECHR balance described below.

What protection do permanent residents and EU long-term residents have?

A permanent permit can be refused under Article 21 Vw and withdrawn under Article 22 Vw, with the sliding scale applied through Article 3.98 Vb. Being born in the Netherlands is not a shield in itself.

Holders of EU long-term resident status have extra protection under Directive 2003/109/EC. Under Article 12 of that Directive, expulsion is only allowed if you are an actual and sufficiently serious threat to public policy or public security. The IND must then weigh the seriousness of the offence, your length of residence and your ties with the Netherlands and your country of origin, not just apply the scale.

Which test applies to EU citizens?

If you are an EU, EEA or Swiss national, or a family member exercising free movement rights, the sliding scale does not apply. Under Article 27 of Directive 2004/38/EC, a measure must be based only on your personal conduct, which must be a genuine, present and sufficiently serious threat to a fundamental interest of society; previous convictions alone are not enough.

Article 28 of the Directive adds stronger protection as your residence grows:

• for every EU citizen, the authority must consider length of residence, age, health, family and economic situation, integration and links with the country of origin;
• with a right of permanent residence, expulsion requires serious grounds of public policy or public security;
• after ten years of residence, and for minors, only imperative grounds of public security suffice.

In Tsakouridis (C-145/09, 23 November 2010) the EU Court of Justice held that organised drug trafficking can in principle meet the “imperative grounds” test, but that even a long prison sentence does not justify expulsion automatically.

What is the difference between an entry ban and a declaration of undesirability?

An entry ban (inreisverbod, Article 66a Vw) is imposed on third-country nationals together with a return decision and applies in the whole Schengen area. A declaration of undesirability (ongewenstverklaring, Article 67 Vw) is used mainly for EU citizens and their family members and has no end date until the IND lifts it.

Under the EU Return Directive an entry ban does not in principle exceed five years, but it can be longer for a serious threat to public order or national security; after a conviction a ten-year ban is common. Staying in or returning to the Netherlands in breach of either measure is a criminal offence under Article 197 of the Criminal Code. Both can be lifted on application to the IND, usually only after time spent outside the Netherlands.

How does Article 8 ECHR protect your family life?

If withdrawal or an entry ban interferes with your family or private life, the IND must balance your interests against public order. The criteria come from the European Court of Human Rights in Boultif v Switzerland (2001) and Üner v the Netherlands (2006).

The IND weighs the seriousness of the offence, the length of your stay, the time since the offence and your conduct since, your family situation and children, the difficulties your family would face abroad, and your ties with the Netherlands and the country of origin. If you committed the offences as a minor and grew up here, Maslov v Austria (2008) requires very serious reasons for expulsion. Good conduct since the last offence is one of the few factors you can still influence.

Can you still naturalise or get a stronger permit?

A conviction delays naturalisation. Under Article 9 of the Netherlands Nationality Act (Rijkswet op het Nederlanderschap), naturalisation is refused if your conduct gives serious grounds to suspect you are a danger to public order; the IND looks back over a fixed period before the application, and pending criminal proceedings also block it.

Public order is also a ground for refusing a permanent permit or EU long-term resident status. A conviction can therefore keep you on a fixed-term permit that the IND reviews at each renewal.

How does the IND procedure work?

Before an adverse decision the IND sends a notice of intention (voornemen) with its calculation and the band it applies. You can respond in writing with a view (zienswijze); that is where the calculation is challenged and your family life and integration are documented.

After the decision, the route is an objection (bezwaar) to the IND or a direct appeal to the district court, and then a further appeal to the Council of State. Under the Aliens Act the deadline is usually four weeks, shorter than the six weeks under the General Administrative Law Act (Awb). Whether you may stay during the procedure depends on the type of decision; where you may not, you must request a provisional measure (voorlopige voorziening).

What should you check as a foreign national facing a criminal case?

• Tell your criminal defence lawyer at once that you are not Dutch, which permit you hold and since when.
• Calculate your position: total unconditional sentence, statutory maximum of the charge, number of offences and years of lawful residence.
• Have the immigration effects assessed before you accept a penalty order or a sentencing proposal.
• Check whether the charge falls under Article 22b of the Criminal Code or the Opium Act exception.
• Collect evidence of family life, work and integration now, not when the notice of intention arrives.
• Do not leave the Netherlands or agree to voluntary departure without advice.

What can we do for you with a conviction and your residence permit?

We handle criminal law and immigration law under one roof, in English.

• We calculate your position on the sliding scale before you decide on a plea or a penalty order.
• We coordinate the criminal defence with the immigration consequences.
• We draft the view (zienswijze) on the IND’s notice of intention, including the Article 8 ECHR evidence.
• We file the objection or appeal within the four-week deadline and request a provisional measure where needed.
• We apply for lifting of an entry ban or declaration of undesirability.

Summary

• The IND decides separately from the criminal court, based on the sliding scale in Article 3.86 Vb.
• The longer your lawful residence, the higher the unconditional sentence needed for withdrawal; repeat offending lowers the thresholds.
• After ten years you are protected, except for Article 22b Sr offences and serious Opium Act offences.
• EU citizens are assessed under Directive 2004/38/EC: only a genuine, present and sufficiently serious threat counts.
• Article 8 ECHR always requires a balance of your family and private life against public order.

Frequently asked questions