The National Commission was informed by an educational institution about an international non-EU student’s request for renewed registration. In the past year that educational institution deregistered the student with the Immigration and Naturalisation Service IND because he did not meet the study progress requirement. The institution could not refuse renewed registration of this student, even though the institution had deregistered him with the immigration service. The Commission examined the information and posed the question which effect this situation has in relation to the Code of Conduct, in particular the study progress stipulation. The question is how renewed registration of an international student relates to his or her previous deregistration with the IND in accordance with Article 5.5. Does the study progress stipulation achieve the desired effect? Furthermore, the Commission is worried that, in theory, an international student might lose their residence permit during their studies and as such would reside in the Netherlands illegally. The current subject does not only affect the Code of Conduct, but also the Dutch Higher Education and Research Act (WHW) and the Dutch Aliens Act 2000 (Vw 2000). First we give a description of the legislation and regulations regarding registration of a student, which is followed by a review of the institution’s information and finally an analysis of the renewed registration compared with the study progress stipulation of Article 5.5 of the Code of Conduct.
Studying in the Netherlands, the interconnectedness with the Code of Conduct, the Vw 2000 and the WHW
The Code of Conduct, WHW and Vw 2000 are closely intertwined at several points. One of these points in particular is the procedure for – renewed – registration of an international non-EU student. The question is to which cases a specific regulation applies and how the various regulations relate to each other. In order to be able to answer these questions the registration process for international non-EU students will be described first.
Registration starts with an international student’s request to register for studies at a Dutch educational institution. The institution first has to assess whether the student can be admitted to higher education and the specific course, and depending on the course additional requirements may be set regarding previous qualifications. The conditions for admission to higher education have been laid down in the WHW. Furthermore, the international student must meet the requirements for admission as formulated in the Code of Conduct, for example regarding proficiency in the English language. When an educational institution is of the opinion that a student can be admitted the institution may apply for a residence permit for studies with the IND. The WHW stipulates that in principle only an international student who legally stays in the Netherlands can be registered with a Dutch educational institution. Please note, only institutions that have been recognized by the IND as a sponsor can recruit international students from outside the EU.
For the IND signing the Code of Conduct is one of the conditions for recognition as a sponsor, and as such a requirement for granting a residence permit to an international student from outside the EU. In other words, only institutions that have signed the Code of Conduct can recruit international non-EU students. As such the Code of Conduct is an addition to the current framework of immigration law. The stipulations of the Code of Conduct guarantee items such as the quality of the courses offered, proper information about the educational offer and regulates in general the relationship between the educational institution and the international student. Additionally, the Code of Conduct contains a set of obligations for the educational institutions for giving information to the IND regarding recognition as a sponsor. Another obligation for educational institutions – which will be explained below – is the requirement to monitor the academic achievements of the student who is obliged to have a residence permit.
The registration procedure shows the interconnectedness between the Code of Conduct, the educational act WHW and the aliens act Vw 2000. These regulations contain all the conditions for admission of a student to Dutch higher education and are therefore closely intertwined.
After this explanation of the registration process, we will give a review of the information sent to the Commission. The case concerned a master student who was obliged to have a residence permit and who was deregistered with the immigration service by the educational institution because the student did not meet the study progress requirement. Insufficient academic achievements and not having excusable reasons for this oblige the institution to deregister the student with the immigration service IND. This is what the institution did.
Subsequently to deregistration the IND may decide to withdraw the residence permit of the student, but it is not obliged to do so. The immigration service informs the student about deregistration and announces that the residence permit may be withdrawn. The student can respond to this. In most cases the IND grants the student a period of three months to find other studies or to apply for another residence permit. If after three months the student has not been registered or has not applied for another residence permit, his original residence permit will be withdrawn. In the current case it is not clear whether the IND decided to withdraw the residence permit.
The study progress requirement came into effect mid-2013, when the Modern Migration Act entered into force. One of the objectives of the requirement is to prevent abuse of the migration route on account of studies to the Netherlands. The institution must establish whether a student actively studies and as such keeps an eye on their academic achievements. In case a student does not come up to the standard, they run the risk to be deregistered with the IND and have their residence permit withdrawn. This means that from the moment the student is deregistered the institutions no longer acts as a recognized sponsor and is no longer responsible for the student.
In this particular case the student subsequently applied for renewed registration for the next course year of the studies he had already taken up. The educational institution had no other option but to grant the request for renewed registration of the student. Upon the first request for registration the educational institution must check whether the admissible international student stays in the Netherlands on a legal basis. This mandatory check does not apply to a renewed registration of a non-EU student. This is the result of the implementation of the Dutch Benefit Entitlement (Residence Status) Act in 1998. The Dutch government introduced this Act with the intention to discourage illegal stay in the Netherlands by denying certain social security benefits to people who unlawfully reside in the Netherlands. Furthermore, the Act should provide clarity about the rights and obligations of persons who illegally stay in the Netherlands. Regarding higher education these stipulations have been laid down in the education act WHW and, as mentioned before, legal stay in the Netherlands is a requirement for registration with higher education.
The Benefit Entitlement Act made it also possible that an international student who no longer lawfully stays in the Netherlands is allowed to complete the course for which they were registered in accordance with the rules in force during their legal stay. However, they are not permitted to start a new course, or to transfer to another educational institution. This stipulation allows a student who was previously deregistered with the IND because of insufficient study progress, to renew registration and complete their studies.
At first glance this might seem a bit odd, as the Benefit Entitlement Act discourages unlawful stay in the Netherlands by denying illegal aliens social security benefits. However, the denial of such benefits has been restricted by several fundamental rights, including the right to education. The right to education is a civil right, a fundamental right that in principle may not be denied to anyone. On the grounds of this fundamental right, the international student who no longer lawfully resides in the Netherlands is given the opportunity to complete their studies. This means that the refusal of a request to the new registration such as in the current case, is impossible.
Overlap binding recommendation on continuing studies
Apart from that, an overlap with the binding recommendation on continuing studies (Dutch Bindend Studie Advies or BSA) exists. In case of a negative recommendation because the bachelor student has not achieved the minimum standard – which is above the study progress standard – in the propaedeutic phase, the educational institution shall deregister the student with the IND. In that case, a number of similar questions arise. In Section 7.8b of the WHW, however, a negative BSA explicitly denies the student to complete their studies at the same institution. They may register for another studies at the same institution, but theoretically the institution may refuse the student as they have been deregistered with the IND and may therefore stay in the Netherlands illegally. In practice, transfer to another studies may already have taken place before giving a negative BSA and the subsequent deregistration with the IND. The situation outlined above therefore only occurs for a renewed registration in the case of bachelor students after the propaedeutic phase and master students who renew their registration for the same course.
Study progress requirement
The question is what the above means in view of the Code of Conduct and more specifically in view of the study progress requirement. The academic achievement requirement has been set with the idea that by monitoring the student’s progress which may lead to deregistration with the IND in the case of insufficient study progress: a) students will be prevented from abusing the right to a residence permit for studies and b) students are encouraged to actually study. It was not the objective of the requirement to provide a reason for refusing renewed registration, but for the possibility to deregister with the IND in case of insufficient academic achievements.
Besides, legislation clearly intended to provide for a possibility for a student who has been deregistered with the IND to complete their studies. A strong argument is at the basis of this: the right to education. The Commission is aware that this may lead to an unwanted situation for the educational institution. The institution may be dealing with an international student who does not fully meet the level of the course and who is not able to complete the studies at the ordinary speed. Moreover, the student may stay in the Netherlands illegally after having been deregistered. This is why the Commission would like to share this information with you. From its care for the – position of the – international student the Commission considers it desirable that both the educational institutions and the IND provide the student with explicit and exhaustive information about the circumstances in which the student may lose their residence permit in the course of their studies and as such might stay illegally in the Netherlands and about the consequences of this. The Commission will therefore start discussions with the umbrella organizations and the IND.