Legalize it: a guide to legalization, apostilles, and translation

When most people think of "legalization" and the Netherlands, they usually get an image like this in their mind:

But people who immigrate to the Netherlands know better-- they associate "legalization" (and "apostille") with an image more like this:

But it does not have to be that frustrating if you take the time to understand the why and how of legalization. That's what this entry is about-- so sit back and read.

What is legalization? In the context of your immigration procedure, you will have to prove certain things about life events that have occurred in your home country: birth, marriage, divorce, death, etc.

In your home country, you will have obtained a document from some government agency or court proving that any one of these life events happened. This document will be on watermarked paper, or have some kind of stamp or raised seal on it that lends it an air of authority and authenticity. Within your home country, no one will doubt the validity and veracity of this document.

But when you leave your home country and try to use these documents with a government agency in another country, the Matrix will suddenly be revealed to you-- it will be revealed to you that the "realness" of these documents was all just an illusion. "But that court decision had an actual stamp on it from the court!" a friend of mine recently complained to me, after trying and failing to get his divorce judgment from a court in the United States registered with the city hall of the town he lives in in the Netherlands.
"So what," I could have answered him, playing devil's advocate. "I could get a stamp made that looks just like that and put it on a document, does that make it a valid court judgment? And who's to say that anyone's supposed to know what or where the Kalamazoo County Court is and why they should be trusted?"

The process of legalization can be compared to vouching for a friend whom you want to introduce to another friend in a city they are visiting. If Friend #1 approached Friend #2 directly, Friend #1 would simply be a stranger to Friend #2, who would have no reason to trust them. But if you call Friend #2 and say "you're going to get a visit from Friend #1-- this is someone I trust", then Friend #2 can trust Friend #1 as well. And then Friend #2 can vouch for Friend #1 to one of their friends, someone you don't even know, and so the chain continues.

With legalization, the comparison is even more apt than you would think. Because legalization is actually about a chain of people vouching for each other. Every legal act that is issued by a government agency or a court does not just come out of a machine: it is signed by a person, a civil servant who is acting on behalf of that agency or court. Since that person is a public employee, their name is going to be on a list somewhere as a known civil servant. So you can ask someone at a level of government above that agency or court to verify that your document was signed by someone who was known to them. And then ask someone who is familiar with the name of that person who signed the verification that their name is known to them, and so on.

Traditional legalization

With traditional legalization, there are usually three links in the chain:
1. The first link is the civil servant who signed the original document.
2. The second link is typically the ministry of foreign affairs of that country (sometimes the ministry of justice)-- you bring the document to the legalization department of the ministry, and a civil servant there looks up the name of the person who signed the document. Once they have verified that the person who signed the document was authorized to do so on behalf of that agency or court, they will put a stamp on the document and sign their own name on that stamp.
3. The final link is the embassy or consulate of the destination country in the country of origin. You bring the document with the first legalization stamp on it to the embassy. That embassy has first-hand contact with the ministry of foreign affairs of the country of origin. The consular worker in charge of legalization at the embassy will be able to verify that the person at the MFA who signed the legalization stamp is known to the embassy as an authorized representative of the government of the country of origin. So the consular worker puts their own stamp or sticker on the document with their signature.

Now the document is valid in the country of destination-- if you bring that document to any government agency or court in the country of destination, it will be considered to be valid, since someone from an embassy or consulate of the country of destination vouched for the person who signed the legalization stamp, and they in turn vouched for the person who originally signed the document. Got it?

This is why an embassy or consulate of the country of origin in the country of destination usually cannot help with this process. If you already have brought the (unlegalized) document from the country of origin to the country of destination, and you bring it to the embassy or consulate of the country of origin, they generally will not have the necessary first-hand knowledge of whether or not the original document was signed by a known civil servant, and so they can't vouch for that person. Their business is diplomacy and consular services, not keeping track of all of the civil servants of all of their government's agencies and courts back home.

Apostille

A number of countries decided that the traditional legalization process was too cumbersome, and signed a treaty to be able to abolish the requirement of legalization for certain documents, by placing a so-called apostille on them (this is not pronounced "apostle", but more like "apo-steel").  This is actually still technically a form of legalization, but it cuts the final link out of the chain, thus reducing the hassle considerably. What was agreed upon by the signatories of the treaty was the following: if the second link of the chain verifies that the first link was a known civil servant, the second link can merely attach their verification in a standard format, a square with ten standard fields on it (this is usually in the form of a sticker placed on the back of the document, or a separate piece of paper stapled to it-- less commonly a stamp, despite the fact that some people refer to "the apostille stamp"). Then this can be directly accepted as valid by any government agency in the destination country.

The process of getting a document apostilled is often a source of much moaning and groaning and gnashing of teeth, but that can be avoided if you just keep two or maybe three things in mind (and of course-- be sure to count yourself lucky if the country the document comes from is a signatory to the apostille treaty-- it would be much worse if you had to go through traditional legalization):

1. You usually have to do it in the country of origin. If you're already in the country of destination, it's too late, and I guarantee you that the embassy of the country of origin will probably not be able to do it for you. (However: you rarely have to go in person to get a document apostilled in the country of origin-- you can do it by postal mail, or have a family member or friend in the country of origin get it done for you.)

2. The document has to be an original. By "original", I mean directly issued by a government agency in the country of origin, not a photocopy. (This is sometimes confusing for people in the case of birth certificates, where they think they have to have the actual original birth certificate, the one that was issued at the time of birth. No. It just has to have been directly issued by a government agency.)

3. If the country of origin has a federal structure (i.e., is composed of separate states that are each in charge of keeping track of their own vital records, as in the United States or Mexico), then it will generally be an office of the state of origin, not of the federal government or of any other state that will be responsible for apostilling a document. 

For most states in the US, the responsible state agency is the Secretary of State of that state-- which in that role exercises a sort of vestigial function of being a "ministry of foreign affairs" for that state as a technically sovereign entity. The Department of State of the United States in Washington-- which is the real "foreign ministry" of the United States-- does have some authority to apostille documents, but only if they were issued by a federal government agency, so things like FBI criminal background checks, naturalization certificates, and federal court judgments.

So if you live in California, but you were born in New York, you have to have your birth certificate apostilled by the Secretary of State of New York. (And on that note: New York City is a special case altogether, being something of a "state within a state", so if the document comes from there you will also have to go through an extra step with the City Clerk.)

[NOTE: Do not make the mistake, either with traditional legalization or with apostilling, of thinking that a notary is essential to any part of this process, at least for vital records. YES, you can get a notarized document apostilled, as a notary is a sort of public servant whose name should be known to the government agency that does the apostilling. And that means that as a notarized statement, it will then be valid as such in the country of destination (i.e., it will be considered to be a valid statement by the notary that so-and-so made a statement at such-and-such a time). However, many people make the mistake of thinking that if they take their birth certificate or court judgment and have a notary make a notarized copy of it, they can apostille that copy and use that in the country of destination. No. That is breaking the chain of trust that is required for the document to be valid. The notary can only be trusted to say "I saw the original, and this is an accurate copy of it"-- but the notary does not have any authority to say "the original document was signed by an authorized civil servant", since the notary does not have access to that information.]

Translation

So you have your document and it's been legalized or apostilled, so it's valid for the Netherlands. But you might not be all the way there just yet. In the Netherlands, any valid document that is in English, French or German (and sometimes Afrikaans) will be accepted without a translation by any Dutch government agency. However, if it's in any other language, it will have to be translated by a certified translator; otherwise you have a valid document of which the content is unknown.

But beware of another trap: if you have it translated into English, French, German or Dutch by a certified translator in the country of origin, then you run into the problem of validity all over again. (I.e., a Dutch government agency would say, "who is the person who did this translation and why should I trust them?") If you have it translated by a certified translator in the country of origin (in some countries, a notary can perform certified translations), then you also have to have the translation legalized or apostilled. And that's a whole 'nother round of hassle.

My recommendation: always have the translation done by a Dutch certified translator for that language, i.e. one who is sworn in to a Dutch court. Then their seal will be directly accepted as valid by any Dutch government agency. Note: a certified translator does not need to see the original of the document, because a certified translation will have the translation stapled or sealed to the copy that the translator used. This copy can always be compared to the original to prove that the contents are the same as the original. 

Helpful links:

Legalization (Wikipedia)

Apostille (Wikipedia)

Guidelines of the Dutch foreign ministry for legalization of documents from any given country (in Dutch)

Inburgering, or civic integration

My apologies for the long hiatus since I started this blog... but in the last two years of running my practice I have been able to make an even better determination of which areas of Dutch immigration law are the most misunderstood and need the most explanation.

So my first entry after my return to this blog is the one I spend the most time explaining. Technically, it has only indirectly to do with immigration-- it is the area of the notorious inburgeringsplicht or obligation of civic integration. "Civic integration", by the way, is a rather wooden translation of "inburgering", even if it's more or less accurate. In Dutch, the deeper meaning is closer to the surface. Burger is the word for "citizen". In-burger-en is thus a quite punchy verb (using a construction similar to e.g. inwerken, or "being shown the ropes at a new job") meaning something like "to get started being a citizen". Sounds promising, doesn't it?

Yet even for those who have a native grasp of the term, the term is rather Orwellian. Because everyone knows, just as Winston Smith knew that there wasn't much love waiting for him in the Ministry of Love, that if you are subjected to the inburgerings-requirement, it is because you will never really be seen as a true citizen of the Netherlands and therefore measures must be taken to deal with you.

That said, I would like to discourage the typical expat attitude that it's no use learning Dutch since you'll never be treated like a full part of society anyway. It is well worth it to learn Dutch, and well worth it to drink deep, not just stop at the quite minimal required level for satisfying the inburgerings-requirement. Surprising native Dutch people with your command of Dutch, especially if they don't expect it of you, can be a great source of joy and harmless daily revenge on the ubiquitous forces of monoculturalism. (I personally drew a great deal of inspiration from the experiences of Jack Seward, a fluent Japanese speaker living in Japan in the 1960s and the author of Japanese in Action. Seward was constantly flummoxing Japanese people who simply could not process that he, a white American, actually spoke Japanese. He developed a method of "overloading the idiot valve" on Japanese people's typical reaction of responding to him in English: coming back with a question that revealed some ridiculous level of expertise on his part on a Japanese subject that even most Japanese people didn't fully understand. I was able to draw on this tactic as of about my second or third year of studying Dutch law, when I could hold forth in fluent Dutch on subjects like the Pacification of 1917 and what it meant for the Dutch Constitution up to this day. Never mind that I still struggled with things like how to ask somebody to pass the salt at the dinner table...)

Before I go into the legal aspects of inburgering, I would like to point out two hypocrisies inherent in the entire idea of it. One hypocrisy will become apparent to you if you are an immigrant from a wealthy Western country outside the EU (and especially if you are white): in your social interactions with native Dutch people, you will constantly be bombarded with the message that it is absolutely ridiculous that anyone should require you to learn to speak Dutch. "Dat slaat helemaal nergens op!" Here's the funny part: you will especially hear this from the very same native Dutch people who tend to complain the loudest about "immigrants" and how they should adapt to Dutch culture or go back to their home countries. This contradiction is easily resolved by the conclusion that actually, the inburgerings-requirement is not there to make (better) citizens of immigrants, but really just to discourage immigrants from coming in the first place (or staying). Especially to discourage the most unwanted immigrants--and I will leave it up to your imagination as to who those are or what they look like for most native Dutch people. The politicians in government have always managed to keep their lips pretty well zipped about this being the real purpose of the inburgerings-requirement, although I do seem to recall a minister reporting to Parliament with some pride, after the basisinburgering in het buitenland requirement had been in effect for a year, that the number of applications for visas to join a partner or spouse in the Netherlands had considerably dropped.

The second hypocrisy is something of a corollary to the first. And that is: there are no bonus points for being extremely well ingeburgerd. Rather: there are only penalties for not being ingeburgerd. I have had numerous foreign clients who already speak excellent Dutch for one reason or another, and for all effects and purposes would make exemplary citizens of the Netherlands, but who somehow do not qualify for a legal immigration status, perhaps because their partner does not make enough money. I then get the question from the partner: "but she/he's perfectly ingeburgerd? Doesn't that count for anything?"  Nope, I have to answer. The Netherlands just doesn't want that person to be here.

OK, so now on to the four areas of the law in which there is an inburgerings-requirement. These are:
I. basisinburgering in het buitenland: the requirement to take a basic Dutch exam at a Dutch embassy or consulate for the purpose of getting a visa to settle in the Netherlands;
II. inburgering as a municipal requirement, where you can be fined for non-compliance
and, closely related to this:
III. inburgering as a contractual requirement because you committed to taking classes.
IV. inburgering as a requirement of Dutch immigration or nationality law in order to "graduate" to an independent residence status or to Dutch citizenship after a certain number of years.


I would also like to make the general point that wherever the law is concerned with inburgering, the satisfaction of the requirement is almost always what we lawyers call a "result" obligation, not an "effort" obligation. In other words, to put it into concrete terms: the inburgerings-requirement is always completely satisfied by passing a state exam (aside from the basic requirement in section 'I' below, which is taken at an embassy or consulate; for II, III and IV, at the lowest level it's the inburgeringsexamen, which has an A2 level of Dutch and the notorious questions on Dutch culture and society; or otherwise, if you want to exclusively be tested on your Dutch, then the State Exam of Dutch as a Foreign Language or Staatsexamen Nederlands als Tweede Taal, abbreviated "NT2", where the "2" stands for "Second" and not for the level-- there are two levels which equally satisfy the requirement, NT2-I which is B1 and NT2-II which is B2/C1).

[Additionally, almost needless to say, if you have completed any formal educational program at a Dutch educational institution for a curriculum which was overwhelmingly in Dutch, then the resulting secondary school, vocational school or university diploma also satisfies the inburgerings-requirement.]

You are not actually required to go to classes! This is a point I make again and again. Adults cannot be forced to go to school, because in human rights terms, compulsory education is a form of detention that is only permissible for children. Keep this in mind. The actual legal requirement is just that you pass an exam. How you prepare for it is up to you. Nor is there any prerequisite requirement for registering for and taking any of the exams above. It's not like the driver's exam in the Netherlands, where you have to be admitted to the exam by a driving school first. You don't have to get the go-ahead from any kind of school or teacher to be able to register for the exam. Nor-- even though the inburgerings-requirement is intimately related to immigration law-- does anyone care what your immigration status is for you to register for it and take it. The test is not administered by the IND, but by DUO, an arm of the education ministry. All this is is a state exam that objectively tests you on your Dutch and possibly on Dutch culture and society-- even a Dutch citizen can register for one of these exams if they really want to!

By the same token, you do have to be objectively tested in order for it to satisfy the requirement, meaning the test has to have been taken in a state testing center and you have to have been issued a watermarked diploma for passing it. It's not enough that you took some kind of unofficial test in the context of a class you are taking and that the teacher gave you a certificate for that. (That used to be the case in Dutch inburgerings-law, and if you did that before a certain year and also had the certificate checked and confirmed by city hall then, then you are considered to have satisfied the requirement under the old law.)

Now for the specific legal requirements:

I. basisinburgering in het buitenland: the requirement to take a basic Dutch exam at a Dutch embassy or consulate for the purpose of getting a visa to settle in the Netherlands

All purposes of stay in Dutch immigration law are divided into two categories based on whether or not an immigrant staying for that purpose has an inburgerings-requirement or not. Your purpose of stay is considered either "temporary" or "non-temporary" for the purpose of inburgering. Essentially, the only purpose of stay that is considered to be "non-temporary" for those applying for a preliminary visa (or "MVV") is family reunification, i.e., in most cases, coming to the Netherlands to join a spouse or partner. Almost all other purposes of stay, especially purposes of stay related to work, study, or exchange programs, are considered to be "temporary", and you are not required to pass the basic inburgeringstoets (which requires A1-level Dutch) at a Dutch embassy or consulate before you can apply for an MVV.  (Note: persons coming for family reunification to join a spouse or partner who is not an EU citizen who is already in the Netherlands for a "temporary" purpose are also considered to be "temporary", and do not have to take the basic exam either to get their MVV.)

This is the area in which the first hypocrisy mentioned above is most clearly supported by the law. There is a short list of six "rich Western countries" whose citizens are not required to obtain an MVV before moving to the Netherlands to apply for a residence permit: Australia, Canada, New Zealand, the United States, Japan and South Korea. Thus, persons of any of these nationalities, if they are moving to the Netherlands to be with their Dutch partner or spouse, are not required to take the basic inburgeringstoets. There is something a bit odd about this effective exemption, when one thinks about it. Implicitly, it seems to say that if you come from a highly developed liberal democracy, you can already be considered to be integrated enough in Dutch society to get a start here. So following that logic, it seems that the Dutch language or familiarity with Dutch culture and society are not as important as they are made out to be, right? Are the important values being more interested in individualism and shopping than in family and religion? Being proficient in English? (Although this excludes quite a few Japanese and Koreans...) Adherence to 'Western' values (which again, Japanese and Korean immigrants might actually dispute)? I'm just saying.

However, in the long run, even these privileged persons, if they have a residence permit for the purpose of family reunification, will be confronted with...

II. inburgering as a municipal requirement, where you can be fined for non-compliance

Based on the Act on Integration (Wet inburgering), all immigrants over 16 and under 67 who have a "non-temporary" purpose of stay on their residence permits (so in addition to family reunification, that also includes immigrants with permanent residence permits [however, if you have a so-called "long-term resident of the EU" permit with the words langdurig ingezetene-EG on it, I currently have a case pending at the European Court of Justice as to whether you can be subjected to the integration requirement]) will, at some point in time, get a letter from the city hall of the municipality where they live, inviting them to come in for a so-called profieltoets and intake interview. During this interview, the starting Dutch level of the immigrant will be assessed. Not long afterwards, the immigrant will receive an official letter notifying her or him that she or he has a period of three years from the time they got their residence permit to satisfy the requirement, i.e. to pass the test. If the requirement has not been satisfied by then, and no extension can be granted due to extenuating circumstances, then the immigrant will be fined: up to €1250.

It used to be that that was the worst that could happen. I would tell my clients to ignore ignorant city civil servants who didn't understand the law and who said apocalyptic things like "if you don't learn Dutch, the IND will take away your residence permit!"

However, on 1 January 2013 a new possibility was introduced into the main immigration law (the Vreemdelingenwet) to make it possible that if the inburgerings-requirement is not satisfied within the required period, the immigrant's residence permit will not be renewed by the IND. I say "possibility", because at the same time, the regulation implementing the law says that renewal will not be denied if denying renewal would constitute a violation of Art. 8 of the European Convention on Human Rights (the right to family life). And if you have a residence permit for the purpose of family reunification and you are still together with your spouse or partner, then denying you renewal would be a violation of that right in just about any case. So the introduction of this possibility in the law is a case of what Dutch lawmakers love to make: symboolwetgeving or "symbolic legislation". Making a law that sounds tough, but is practically unenforceable. And I can tell you that all of the immigration lawyers in the Netherlands are sharpening their knives for the day that the government actually does try to deny someone renewal for this reason, because it will almost certainly be struck down by the courts.

Going back to the interview at city hall-- after your Dutch level is assessed, you will often be offered classes at your level. Now the practice related to this is in flux, since as of 1 January 2013, you will no longer get an offer that includes funding these classes for you (since the government has now cut off the funding of them). But be informed before you accept any offer of classes or sign anything, because otherwise you can be confronted with....

III. inburgering as a contractual requirement because you committed to taking classes

 What happens all too often is that civil servants at city hall (again, who don't always understand the law themselves), threaten or cajole immigrants into accepting the classes that are offered to them, often because they make the immigrants believe that the requirement consists of actually taking these classes (which, as we saw above, is not true). They then lay a "participation contract" (of course, in Dutch) on the table in front of the immigrant and pressure them to sign. If you sign this contract, then you are in fact creating an obligation for yourself to go to classes, where previously you had none! I have seen it happen too many times where people did not know what they were signing, started going to the classes but then dropped out because the quality of the classes was poor or because they didn't have time to go-- and then found themselves on the hook for breach of contract, with the municipality coming after them for a fine that they had agreed to pay if they didn't complete the course.

So-- don't sign anything during this interview. Say you need to go home and think about it. And make sure a Dutch speaker reads the contract for you. And remember: you are not required to take any classes. You are completely free to tell city hall that you have decided to learn Dutch through self-study or from a private tutor. Your only requirement is to pass that exam within three years.

Finally, after some time in the Netherlands...

IV. inburgering as a requirement of Dutch immigration or nationality law in order to "graduate" to an independent immigration status or Dutch citizenship

This is the one that nobody gets out of if they want to stay in the Netherlands permanently and unconditionally. In other words: if you want to get a permanent residence permit, a residence permit for continued stay after your relationship has ended with your spouse or partner, or if you want to become a Dutch citizen, then you have to submit a diploma proving that you passed one of the exams to satisfy the requirement.

Now if you were already staying for a "non-temporary" purpose, you were already made well aware that you had to pass that exam, and you may have actually already done it-- so when the time rolls around that you become eligible for a permanent residence permit or to apply for naturalization, you've already taken care of it. (To answer another common question: if the inburgerings-requirement is satisfied for requirement II, III, or IV above, it's satisfied for all of them. It's not the case that you have to, say, pass an even more complicated exam to get naturalized.)

This section is more relevant to the people who were already staying for a "temporary" purpose, usually work, who are suddenly confronted with the fact that they have to learn Dutch and pass an exam if they want to get a permanent residence permit. "But I thought I was exempted from that requirement!" some of them protest. You are, I respond, as long as you stay with your current "temporary" immigration status, with all of the uncertainty of being dependent on an employer that that involves. But as soon as you want to voluntarily "graduate" to the next level, you have to bite the bullet.

The most interesting protest that I heard once from an expat, i.e. a work-related immigrant, was: "But I wasn't allowed to inburger!" which revealed clearly just how incredibly confusing this entire requirement is and how many people misunderstand that it's not about actually taking the classes or getting offered funding to take them. That was a key inspiration for me to write this entry.

gatekeepers

I'll admit it. As a lawyer specialized in dealing with the government, my favorite part of any procedure is when the application has been filed, or we are in appeals, because then I can move about without resistance in the artificial, Tron-like world of the law. It's just me and the government, skating around and throwing frisbees of abstract legal arguments at each other. [It makes perfect sense to me that I made the transition from computer programming to public law.]

But as an administrative lawyer, I've also become quite adept at dealing with the human interfaces to the world of the law. Recently at the gym, chatting about my work with an American expat* , I was listening to his stories of frustration in dealing with all kinds of gatekeepers in the Netherlands, whether civil servants or customer service representatives. He asked me, "How do you deal with it, hearing that phrase over and over again: That's imbossible ?"
"I rarely hear that phrase," I replied.  It's true. There are rarely any surprises for me in dealing with a civil servant, because I know that their range of actions is fully determined by the law, and if I know that the law allows me to file an application for something I need, I'm not going to let that gatekeeper stand in the way.

An increasingly large part of my work lately is in coaching clients to see things the same way when they file their applications. It's gotten to the point where I am now giving my clients a piece of required reading before their first appointments at city hall and the IND: the classic parable 'Before the Law' by Franz Kafka, a micro-story within a story in his novel The Trial. Without any further ado, I will paste  the excellent translation by Ian Johnston below (click on the link for all necessary copyright information):

Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks if he will be allowed to come in sometime later on. 

“It is possible,” says the gatekeeper, “but not now.” 

The gate to the law stands open, as always, and the gatekeeper walks to the side, so the man bends over in order to see through the gate into the inside. When the gatekeeper notices that, he laughs and says: 

“If it tempts you so much, try going inside in spite of my prohibition. But take note. I am powerful. And I am only the most lowly gatekeeper. But from room to room stand gatekeepers, each more powerful than the other. I cannot endure even one glimpse of the third.” 

The man from the country has not expected such difficulties: the law should always be accessible for everyone, he thinks, but as he now looks more closely at the gatekeeper in his fur coat, at his large pointed nose and his long, thin, black Tartar’s beard, he decides that it would be better to wait until he gets permission to go inside. The gatekeeper gives him a stool and allows him to sit down at the side in front of the gate. 

There he sits for days and years. He makes many attempts to be let in, and he wears the gatekeeper out with his requests. The gatekeeper often interrogates him briefly, questioning him about his homeland and many other things, but they are indifferent questions, the kind great men put, and at the end he always tells him once more that he cannot let him inside yet. The man, who has equipped himself with many things for his journey, spends everything, no matter how valuable, to win over the gatekeeper. The latter takes it all but, as he does so, says, 

“I am taking this only so that you do not think you have failed to do anything.” 

During the many years the man observes the gatekeeper almost continuously. He forgets the other gatekeepers, and this first one seems to him the only obstacle for entry into the law. He curses the unlucky circumstance, in the first years thoughtlessly and out loud; later, as he grows old, he only mumbles to himself. He becomes childish and, since in the long years studying the gatekeeper he has also come to know the fleas in his fur collar, he even asks the fleas to help him persuade the gatekeeper. Finally his eyesight grows weak, and he does not know whether things are really darker around him or whether his eyes are merely deceiving him. But he recognizes now in the darkness an illumination which breaks inextinguishably out of the gateway to the law. Now he no longer has much time to live. Before his death he gathers in his head all his experiences of the entire time up into one question which he has not yet put to the gatekeeper. He waves to him, since he can no longer lift up his stiffening body. The gatekeeper has to bend way down to him, for the great difference has changed things considerably to the disadvantage of the man. 

“What do you still want to know now?” asks the gatekeeper. “You are insatiable.” 

“Everyone strives after the law,” says the man, “so how is that in these many years no one except me has requested entry?” 

The gatekeeper sees that the man is already dying and, in order to reach his diminishing sense of hearing, he shouts at him, 

“Here no one else can gain entry, since this entrance was assigned only to you. I’m going now to close it.”

The moral of the story is: if you know the entrance to the law is there, then don't hesitate, just walk on in. How this works, in particular at the IND, is as follows.

• First of all, I always remind my clients to put things in perspective. The person you are dealing with at the counter or on the phone is just that: a counter worker or a telephone operator. This is the lowest level of civil servant at the IND (and they might not even be a full civil servant-- the IND often hires them through temp agencies). They will have virtually no latitude to decide anything about your case, as much as they may try to make you believe that. 
• For that matter, what they say is not necessarily the word of 'the IND'. If you get wrong information about the law from (in particular) a telephone operator, you cannot rely on that later. (Because: "ignorance of the law is no excuse.")
• And for that matter, you must not view yourself as asking 'the IND' for permission to stay. The IND as an organization is one big gatekeeper. You must view yourself as asking the Dutch government to faithfully carry out the law. Therefore (and I'm sorry if this sounds like self-promotion) it is always advisable to talk to someone who knows the law first.
• Back to the first-level gatekeepers of the IND. Most of them are genuinely not bad people--many of them are in this job because they do want to help people. In addition to their gatekeeper role, they do have something of an advisory role; they are there to help advise you on what you need for your application to be approved.
• But sometimes they go a bit overboard with that task, so much so that they seem to resent it when an applicant has sought qualified legal advice. I have had clients hand in an application form that I have neatly filled in and printed out for them, only to have the counter worker insist that they are not applying for the right purpose of stay, then take the form, grab a pen, and put a big 'X' over the purpose of stay that I have checked off for the client and check off the purpose of stay that they think the client really wants. File a complaint if they do that; that is essentially falsifying a statement that you made, since a signed application form is your legal statement.
• Another tactic is what I call the 'false rejection'. Remember, this person does not themselves have the authority to reject your application. A true rejection, according to the General Administrative Law Act (Algemene wet bestuursrecht), has to be in the form of a written decision. A written decision must be signed by an authorized civil servant and it must be supported by reasons. In the IND's case, the authorized civil servant will not be working at the counter, but rather in the back office of one of the four regional centers of the IND (Hoofddorp, Zwolle, Rijswijk, Den Bosch). 
• A false rejection, on the other hand, typically takes the form of 'Oh, I'm very sorry-- but this application will simply not be approved. Why don't we make another appointment for you so that you can come back when you have X, Y and Z?' The way to counter this, at least if you are confident that you are filing the right application, is: 'Thank you for your advice. However, it is my right to file this application. I would like to pay the application fee as well. If the application is incomplete, the back office can always ask me/my lawyer to send them the extra documents that they need.'
• Note that the false rejection is an especially common tactic with EU citizens* who are applying for their proof of registration as an EU citizen, especially when they are bringing a non-European family member with them. This is, unfortunately, one of the areas where counter workers do get a rather large latitude to decide on the spot whether the EU citizen gets a proof of registration or not. (Ironically, the reason the system was set up that way was in the interest of 'convenience' and 'reducing bureaucracy' for EU citizens in the Netherlands.) If the counter worker tries to tell you as an EU citizen that you did not bring the right documents and to come back another time, especially if you already showed them documents proving that you have employment in the Netherlands (which means they cannot tell you you have to earn a specific amount of money or have proof of health insurance), then insist that your application for registration as an EU citizen be processed (and if need be, officially rejected) by the back office. This is your right. This is also very intimidating to the Dutch government, because if it gives you an official rejection as an EU citizen, that means that that has to be included in the statistics on the number of rejections of EU citizens (and therefore potential frustrations of the right of freedom of movement) that the Dutch government has to give the European Commission every year.

partnership

*Words printed like this are future links to as-yet unwritten entries in the Dictionary!

This is the first entry I am writing in the Dictionary, because this is the issue that I am explaining to clients over and over again. I don't mind that much, because I think it's something quite special that the Netherlands has three different forms of partnership that any two unrelated adults can enter into. I also think that it's quite special that any one of these forms of partnership is available to both same-sex and different-sex couples. Of course, everyone knows that same-sex couples can get married in the Netherlands, and so you won't be surprised to meet a woman who wants to introduce you to her wife, or a man who wants to introduce you to his husband; but it also works the other way: if you meet a man who wants to introduce you to his 'partner', do not assume that his partner is a man! Partnerships other than marriage are anything but a second-class category, but rather are a valid option for anyone who does not necessarily wish to deal with the institution of marriage.

The three forms of partnership relevant to Dutch immigration law are:
1. marriage (huwelijk),
2. registered partnership (geregistreerd partnerschap), and
3. unmarried, unregistered partnership a/k/a cohabitation (samenwonen)

Dutch immigration law generally does not care which form of partnership you entered into with the person you are joining in the Netherlands, as long as you can prove the existence of the partnership.

NOTE!! When I say 'Dutch immigration law', this means that it does not apply to you if one of you is an EU citizen who moved from another EU country to the Netherlands. EU law* applies to that situation.

1. and 2. Marriage and registered partnership

I mention these two institutions in one breath because they have a lot in common and the differences are few.

Both have so-called public legal effect: this means that the two partners are entering into a bond with each other that can have an effect on their legal relationships with other people. Both of these are entered into in public at your local city hall, with a ceremony and witnesses: they are a matter of public record, because it's other people's business if you are married or have a registered partner.

By default, both marriage and registered partnership create community of property (gemeenschap van goederen) under Dutch law-- that also means that if one spouse/partner is on the losing end of a lawsuit, the other spouse/partner might have to pay up as well. That also means that in case of a divorce or dissolution, you will have to settle on or have a court battle about the division of property. You don't have to have community of property: but before you get married or enter into a registered partnership, you have to go to a civil-law notary (notaris) who will draw up a prenuptial agreement (huwelijkse voorwaarden) arranging for anything up to total exclusion of community of property (koude uitsluiting). A civil-law notary is much more than the 'notary public' known to many Anglo-Saxon countries: a civil-law notary is a highly qualified lawyer in her or his own right specialized in drawing up documents, and is also a sworn public servant. Thus signing a prenuptial agreement before a civil-law notary makes it a matter of public record, which is necessary to limit the obligations of your marriage or registered partnership.

• Both marriage and registered partnership are entered into in a ceremony with at least two witnesses at your local city hall (or, if you can splash out, at an alternative location that your local city government might make available).
• Both marriage and registered partnership require a minimum waiting period of 14 days (to allow for cold feet) after you make your intention known to the city hall, known as ondertrouw.
• Both marriage and registered partnership require both of you to submit proof of non-impediment to marriage* 
• Both marriage and registered partnership require that at least one of you is a legal resident of the Netherlands, registered at an address in the Netherlands (address registration*)-- you cannot both come to the Netherlands on vacation and get married or enter a registered partnership.
• If either one of you is a non-EU citizen* who is not in possession of a permanent residence permit, you cannot enter into ondertrouw until the city government asks the IND* for permission for you to get married-- this is the so-called M46 statement (M46-verklaring). Don't sweat this-- it's largely a formality. The IND may call both of you in to verify that you are really a couple, or they may not.

At the same time, however, the IND's approval in this phase (which is just a very light test of whether there could be any theoretical objections to the immigrant spouse/partner getting married or partnered) does not necessarily mean that the immigrant spouse/partner's immigration application will ultimately be accepted! I have seen many mixed couples who thought that getting married by itself, including getting the IND's approval, was enough for the foreign spouse to be able to stay in the Netherlands, and they thought they were done after going through all the paperwork of getting married. They were to get a rude awakening when, for example, the foreign spouse was denied entry after returning from vacation for not having a residence permit*!

Within 6 weeks after the city government asked the IND for the M46 statement it will get it back and the city government will let you know that you can come in and go into ondertrouw.

There are only two differences between marriage and registered partnership-- and in fact, when two men are involved, there is only one difference between marriage and registered partnership.
• If one of the spouses in a marriage is a woman and she has a baby, her spouse will automatically be considered to be the legal father or legal co-mother. If one of the partners in a registered partnership has a baby, on the other hand, her male partner has to go to city hall to actively acknowledge (erkennen) paternity; her female partner, on the other hand, has to make sure the paternity of the sperm donor is legally denied (ontkenning vaderschap) and then adopt the baby as a legal co-mother. (As you can see, this issue is entirely irrelevant for two men who are married or registered partners.)
• Registered partnership is much easier to dissolve amicably-- the partners can sign a termination agreement before an attorney and file it at city hall. Marriage can only be dissolved by going to court for a divorce.

Note that Dutch family law, by contrast to the law of Anglo-Saxon countries, is always concerned with legal parenthood, a purely formal definition that is not always the same as biological parenthood. (This is one of the classic differences between common law and civil law.) The biological mother will almost always be a legal mother, as this has everything to do with one of the most primal facts of life, as captured by the Roman legal maxim mater semper certa est. The male of almost any animal species, however, can never be entirely certain if he's the biological father. Therefore, the Romans chose to simplify matters by making the husband of the mother the father, even if everyone and the milkman knows he's not. And this persists into Dutch law and almost all of the other legal systems of Continental Europe.


3. Cohabitation

This couldn't be simpler to explain. Cohabitation is simply living together in a relationship (or more colorfully, 'living in sin'). Yet this is the institution that I spend the most time explaining to people.

Reason #1 is usually the the Dutch half of a couple, who simply cannot comprehend how simple this institution is. It is, in fact, quite an un-Dutch legal institution in its simplicity, and it is in fact one of the few lasting achievements of the Swinging 1970s in a country that is generally not as swinging as people seem to think. Ever since about 1979, it has been possible to immigrate to the Netherlands as the unmarried, de facto partner of a Dutch citizen or established immigrant.

The Dutch partner usually cannot get the simple word samenwonen out of their mouth-- their tongue, used to things being more complicated than that, turns it into samenlevingscontract. "So we have to go to the notaris and draw up a samenlevingscontract, right?" "Nope," I answer. You only have to draw up a contract with each other if you want to-- for each other. If you want to put on paper who will do the cooking, who will do the cleaning, who the couch belongs to and who the TV belongs to.

I have also often had the Dutch partner bring their nervous parents with them to an appointment, who are worried that if something happens to the Dutch partner, the foreign partner will inherit the family farm. Also, no. There are virtually no legal consequences for third parties resulting from cohabitation. No automatic community of property either.  "You are roommates with benefits," as I put it to my clients.

The only requirements for immigration benefits from samenwonen are:

• you prove that you both could get married to each other, in theory, if you wanted to. This mainly means (since we can hopefully assume that you are not siblings) that you both have to obtain proof of non-impediment to marriage*. 
• the Dutch partner or established immigrant has to sign a sponsorship declaration (garantverklaring). This is a requirement because if you are married or registered partners, you have a legal obligation to take care of each other. If you are cohabiting partners, you do not have this legal obligation. By the same token, however, the garantverklaring does not say that you have an obligation to take care of each other! (Another top nervous-parent question.) The text only says that if the foreign partner has to go on welfare (in particular, bijstand), the Dutch partner will get the bill (since then it will be assumed that the Dutch partner didn't take care of their foreign partner). Likewise if the foreign partner gets deported and incurs costs to the state.
• and last, but not least, you have to be registered as living at one address (see address registration*). 

Now it's that last requirement that often confuses the foreign partner. I've had a lot of foreign partners approach me saying that they have a 'registered partnership' and they need to know how to dissolve it or whether they qualify for continued residence*. Further inquiries from my side reveal that they were really just cohabiting. Especially for foreign partners from Anglo-Saxon countries, to whom address registration is completely alien, it can be confusing-- they had to go to a city office, usually together with their partner, to 'register' at their partner's address, so they thought they had a 'registered' partnership.

In case you needed any more reminding that the swinging years are over under the current, deeply conservative government formed by the VVD and the CDA with the support of Geert Wilders' PVV, this last legacy of Holland's progressive social norms may be abolished by law, at least if a change in the law announced by the CDA minister of immigration, Gerd Leers, is passed. Cohabitation would then no longer be an option for immigration: you would have to get married or get a registered partnership. The plan was immediately attacked by the COC, the national GLBT organization, as being particularly detrimental to lesbian and gay couples who don't have the option of getting married in the foreign partner's home country; so we'll see if the change actually happens. Fingers crossed.

Conclusion: How all three forms of partnership are the same

In the eyes of Dutch immigration law, there is no difference between any of these forms of partnership. The requirements of Dutch immigration law are equally strict for all of them. This especially means that if you are Dutch and you have a foreign boyfriend or girlfriend, and you do not satisfy the income requirements for him or her to get a residence permit as your cohabiting partner, getting married will not change that.