The (un)free movement of third-country nationals

Some Ukrainian employees had temporary residence permits in Slovakia, where they worked for a company. The employees were later posted to the Netherlands to carry out an assignment. The assignment dragged on, and the employees ended up staying in the Netherlands for more than 90 days, which is the limit for non-EU citizens to stay in the EU.

To continue working, the employees needed a Dutch residence permit, which cost a fee. The question was whether the Ukrainians had an automatic right to stay in the Netherlands because of their residence permit in Slovakia or whether they needed a separate Dutch residence permit. Another question was whether the fee for the residence permit could be higher than for EU citizens.

One residence permit does not open all doors

The European Court of Justice ruled that the Netherlands could require the Ukrainians to obtain individual residence permits if their work lasted more than the permitted 90 days in a 180-day period. In other words, they did not automatically have the right to stay in the Netherlands because they had this right in another EU country.

It was also not against the EU rules that the fee for residence permit applications was higher than for EU citizens. The price just had to be reasonable in relation to what it cost the authorities to process them.

IUNO’s opinion

The case shows that a residence permit in one EU country does not automatically give the right to reside in another EU country. A third-country national does not have the same right to move freely within the EU's borders as an EU citizen. Even if you have a residence permit as a third-country national, you do not have a ‘derived right’ to reside in all EU countries.

IUNO recommends that companies are aware of the special rules on residence permits when using labour from third countries, such as Ukraine. We have previously written about new rules on foreign labour here.

[European Court of Justice’s judgment of 24 June 2024 in case C540/22]