A criminal conviction and your right to stay in the Netherlands

For a foreign national in the Netherlands, a criminal case has two outcomes, not one: the sentence imposed by the criminal court, and what the Immigration and Naturalisation Service (IND) does with your residence permit afterwards. The second is often the more serious, and it is decided separately, by a different authority, against different criteria. This article explains it: the sliding scale, refusal and withdrawal of a permit, the protection EU citizens enjoy, undesirability and entry bans, the effect on naturalisation, and the balancing exercise under Article 8 of the European Convention on Human Rights.

Two decisions, two authorities

The criminal court decides guilt and punishment, not whether you may stay. Loss of residence is an administrative consequence, taken by the IND on the ground of public order (openbare orde). The powers are in the Aliens Act 2000 (Vreemdelingenwet 2000): articles 18 and 19 for refusal of an extension and withdrawal of a fixed-term regular permit, articles 21 and 22 for a permanent regular permit, article 32 for an asylum permit. They are worked out in the Aliens Decree 2000 (Vreemdelingenbesluit 2000), principally articles 3.86 and 3.98.

Three consequences follow. An acquittal normally ends the immigration risk, but a conviction does not automatically end your residence: the IND must still apply its own test. The IND generally works from a conviction that has become final (onherroepelijk), so an appeal affects the immigration timetable. And a disposal that avoids a trial can still count: a penalty order from the prosecutor (strafbeschikking) is not a neutral outcome. The Aliens Act Implementation Guidelines (Vreemdelingencirculaire) treat a penalty order that you have accepted unconditionally in the same way as a conviction that has become final.

What the IND weighs

The IND does not weigh the offence as such. It weighs two figures against each other: the total of the unconditional custodial sentences and comparable measures imposed on you, and the length of your lawful residence. Detention under a hospital order, community service converted into detention, short sentences accumulated over years and offences committed abroad can all feed into that total.

The sliding scale (glijdende schaal)

The sliding scale in article 3.86 of the Aliens Decree 2000 links those two figures: the longer you have lawfully lived here, the heavier the sentence must be before your permit can be refused or withdrawn. It weighs the lawful residence built up, in the categories of nought to three years, three to ten years and more than ten years, against the length of the prison sentence or community service order irrevocably imposed. It has three strands. One applies to offences carrying a statutory maximum of less than six years’ imprisonment; a second, with markedly lower thresholds, to offences carrying a statutory maximum of six years or more; a third to repeat offending, where convictions are weighed cumulatively and the thresholds are lower again.

The table sets out selected bands only. The scale in article 3.86 of the Aliens Decree 2000 runs in yearly steps up to ten years of lawful residence, so it also contains bands between those shown here — four to five, six to seven and eight to nine years — each with its own thresholds. Always work from the current consolidated text of the article for the band that applies to you.

Two qualifications matter more than the numbers. First, after ten years of lawful residence the IND will in principle no longer refuse an extension or withdraw a permit on public order grounds at all. The exception is narrow but real: offences designated in article 22b of the Criminal Code (Wetboek van Strafrecht), and Opium Act offences carrying a statutory maximum of six years or more. That is what makes drugs convictions so dangerous for long-resident foreign nationals. In its judgment of 16 March 2023 (ECLI:NL:RVS:2023:1071) the Administrative Jurisdiction Division of the Council of State upheld withdrawal of a permanent permit, with a ten-year entry ban, from a man who had arrived as a child and held lawful residence since 1981, precisely because his record fell within that exception.

Second, the scale is a threshold, not a decision: crossing it makes withdrawal possible, not lawful. An individual assessment must still follow, and where family life is engaged, the balancing exercise below.

The scale was tightened, and applied to people already here

The scale is significantly stricter than a generation ago: thresholds were lowered across the bands, the repeat offender test was simplified so that three offences suffice, and the protection given to the very long resident was narrowed to the article 22b and Opium Act exception. A tightening of this kind is generally applied to people already living here when it took effect, and to conduct predating it. Long residence built up under an older scale does not lock in the protection that scale gave. The scale in its present form was introduced by the amendment of article 3.86 of the Aliens Decree 2000 published in Staatsblad 2012, no. 158, and it is applied prospectively: a withdrawal decided after that amendment took effect is measured against the current scale, even where the convictions behind it are older. The Council of State confirmed that approach in ECLI:NL:RVS:2013:BZ4281.

Permanent residence and EU long-term resident status

A permanent permit is stronger than a fixed-term one, but not immune. It can be refused under article 21 of the Aliens Act 2000 and withdrawn under article 22, with the sliding scale applied through article 3.98 of the Aliens Decree 2000. The Council of State has upheld withdrawal even from a person born here: in its judgment of 18 October 2022 (ECLI:NL:RVS:2022:2984) birth in the Netherlands did not by itself prevent withdrawal, although the reasoning on relocation to the country of origin was found wanting.

EU long-term resident status carries an extra layer of protection from Directive 2003/109/EC. Article 6 permits refusal of the status on public policy or public security grounds only after weighing the severity of the offence, the danger you represent, your duration of residence and your links with the country. Article 12 goes further: a long-term resident may be expelled only where he or she is an actual and sufficiently serious threat. That is stricter than a bare arithmetical application of the sliding scale, and worth taking. The IND cannot therefore dispose of the case by arithmetic alone: where article 12 applies it must carry out an individual public order assessment in which the seriousness of the offence, the duration of your residence and your personal ties are weighed, strictly along the lines drawn by the Court of Justice.

EU citizens and their family members: a different test

If you are a national of an EU or EEA member state or of Switzerland, or a family member of one exercising free movement rights, the sliding scale does not apply. Your position is governed by Directive 2004/38/EC, implemented in the Aliens Decree 2000. Article 27 sets the baseline: a measure on public policy or public security grounds must be based exclusively on your personal conduct, and that conduct must represent “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. Previous criminal convictions do not in themselves constitute grounds. The word present does much of the work: an older conviction followed by stable conduct is a weak basis for expelling an EU citizen, even where it would cross the sliding scale for a third-country national. Article 28 adds graduated protection:

• for any EU citizen, the authority must take account of length of residence, age, state of health, family and economic situation, social and cultural integration, and links with the country of origin;
• an EU citizen with a right of permanent residence may be expelled only on serious grounds of public policy or public security;
• an EU citizen resident in the host state for the previous ten years, and a minor, may be expelled only on imperative grounds of public security.

In Land Baden-Württemberg v Tsakouridis (case C-145/09, judgment of 23 November 2010) the Court of Justice held that “imperative grounds of public security” requires a particularly high degree of seriousness, that organised drug trafficking may in principle meet it, and that even a five-year prison sentence cannot automatically justify expulsion: the threat must be weighed against integration, childhood in the host state and family ties. Article 33 adds that expulsion may not be ordered as a penalty attached to a custodial sentence.

Declaration of undesirability and entry ban

Losing a permit and being barred from returning are different things. Dutch law has two instruments for the bar, and which one you receive depends chiefly on your nationality and status.

The ten-year entry ban is the one most often attached to a conviction-based withdrawal, and it is why people who assume they can come back later are wrong. Both can be lifted, on application to the IND. Temporary lifting can be requested for compelling family circumstances, to give evidence, or to attend your own criminal proceedings. Definitive lifting of an entry ban is normally considered only once you have spent a substantial part of the period outside the Netherlands and can document good conduct elsewhere. A declaration of undesirability is lifted where maintaining it would conflict with the Convention, or where you are later granted a permit.

Article 8 ECHR: the family life balance

Where withdrawal or an entry ban would interfere with family or private life, Article 8 of the European Convention on Human Rights requires a balancing exercise. The criteria come from Boultif v Switzerland (no. 54273/00, 2 August 2001) and were extended in Üner v the Netherlands (no. 46410/99, Grand Chamber, 18 October 2006). The authority must weigh:

• the nature and seriousness of the offence;
• the length of your stay in the country from which you are to be expelled;
• the time elapsed since the offence and your conduct since;
• the nationalities of the people concerned;
• your family situation, including the length of a marriage and other indicators of real family life, and whether your partner knew of the offence when the relationship began;
• whether there are children, and their ages;
• the difficulties your partner and children would face in the country of destination, and the children’s best interests and well-being; and
• the solidity of your social, cultural and family ties with the host country and with the country of destination.

Dutch courts apply these criteria directly. In its judgment of 14 January 2021 (ECLI:NL:RVS:2021:68) the Council of State upheld withdrawal of a permit and a two-year entry ban imposed on a man born in the Netherlands, applying the sliding scale together with the Boultif and Üner factors; repeated offending and thin ties to the country of origin weighed decisively against him. The case corrects two opposite illusions: that being born here is a guarantee, and that a long record is automatically fatal. It is the weighing that decides, and time since the last offence, with good conduct since, is among the few factors within your control. Where the offences were committed as a minor, Maslov v Austria (no. 1638/03, Grand Chamber, 23 June 2008) adds a further weight on your side: very serious reasons are required to justify expelling a settled migrant who committed the offences as a juvenile and has spent most of his childhood and youth in the host country.

Naturalisation and applications for a stronger permit

A conviction also blocks the routes out of precarious status. Under article 9 of the Kingdom Act on Netherlands Nationality (Rijkswet op het Nederlanderschap), naturalisation is refused where, on the basis of your conduct, there are serious grounds to suspect that you are a danger to public order, public morals or the security of the Kingdom. The IND applies this through the Handleiding Rijkswet op het Nederlanderschap, which works with a rehabilitation period of four to five years preceding the application for offences disposed of by a punishment order (strafbeschikking), a fine or a community service order: if such a sanction was imposed within that period, or proceedings are pending, the request is refused and the period runs afresh. The Handleiding sets the thresholds: a single financial sanction of €900 or more; several sanctions of €450 or more each totalling €1,350 or more; a single community service order of 36 hours or more; several community service orders of 18 hours or more each totalling 54 hours or more; and any custodial sentence, whether suspended or not.

Public order is also a ground for refusing a permanent permit or EU long-term resident status, so a conviction can leave you on a fixed-term permit that the IND reviews at every renewal.

What happens in practice

• Notice of intention (voornemen). Before an adverse decision the IND sends a written notice setting out what it intends to do and why, including its sentence calculation and the sliding scale band it applies.
• View (zienswijze). You have a short period to respond in writing. This is the most important document in the file: it is where the calculation is challenged and the Boultif and Üner factors are evidenced, with relationship and children’s documents, school reports, medical evidence, proof of work and material on your ties.
• Decision. The IND decides, often combining withdrawal with a return decision and an entry ban.
• Objection and appeal. Depending on the decision, the route is an objection (bezwaar) to the IND then appeal to the district court, or direct appeal, with onward appeal to the Council of State. The Aliens Act 2000 sets its own, shorter periods: as a general rule four weeks rather than the six weeks of the Awb, and one week in the cases the Act designates, among them decisions on asylum applications taken in the short procedure and detention cases (art. 69 Vw 2000). Whether lodging an objection or appeal allows you to remain in the Netherlands while it is pending does not follow the general administrative-law rule either; it is governed by the Aliens Act 2000 and differs by type of decision, so check it in each case. Where it does not, a separate application for interim relief (voorlopige voorziening) is needed.

The point that matters most: coordinate both lawyers from day one

Almost every avoidable loss of residence has the same origin: the criminal case was handled sensibly on its own terms and disastrously in immigration terms, because nobody looked at both files at once.

The reason is arithmetic. The IND counts the unconditional part of the sentence. A defence strategy that trades a shorter overall sentence for a longer unconditional component can be a win in the criminal court and a catastrophe at the IND. So can accepting a penalty order to avoid a hearing, agreeing a sentence just above a threshold, or admitting a further minor offence to close the file when the number of offences is what tips you into the repeat offender strand. The charge matters too: whether the conviction falls inside the article 22b or Opium Act exception can decide whether ten years of residence protects you. In practice:

• tell your criminal defence lawyer at the first interview that you are not Dutch, and what status you hold and since when;
• have an immigration lawyer review the file before any plea, penalty order or sentencing agreement is accepted;
• keep the calculation in view: total unconditional sentence, statutory maximum of the charge, number of offences, years of lawful residence;
• preserve evidence of family life and integration from the outset, not in haste when the notice of intention arrives; and
• do not leave the Netherlands, or accept a voluntary departure, without advice.

Law & More has criminal law and immigration law under one roof in Eindhoven and Amsterdam, and works in English. If you have been summoned, arrested, offered a penalty order or sent a notice of intention, the moment to have both questions looked at together is now, not after the criminal case ends.