New rules set for foreign nationals’ criminal background statements

IMPACT – MEDIUM

What is the change? Dutch immigration authorities have set new rules governing antecedent certificates—the forms that are signed by foreign nationals to certify that they have a clean criminal history.

What does the change mean? Recognized sponsors no longer need to submit signed antecedent certificates with the work and residence permit application. Instead, they must retain the certificates in their records in order to be in compliance with their obligations as recognized sponsors. However, if the foreign employee does not sign the certificate or has previous criminality, the form must be submitted with the application and the recognized sponsor is not required to keep the certificate on file.

• Implementation time frame: Immediate.
• Visas/permits affected: Residence permits and work authorization applied for by recognized sponsors.
• Business impact: The change places a new administrative burden on recognized sponsors to determine when they must retain the antecedent certificate.
• Next steps: Recognized sponsors should have procedures in place to retain all signed antecedent certificates; unsigned certificates or certificates indicating that the foreign employee has a criminal background must be submitted with the residence and work authorization application. Family dependents of the foreign employee are not affected by the new rules; their antecedent certificates must be submitted with their residence permit applications, and the recognized sponsor is not required to retain those certificates.

Background: Dutch employers who want to recruit highly skilled migrants or scientific researchers must apply for recognized sponsor status with the Immigration and Naturalisation Services. Recognized sponsors enjoy faster and simplified processes for many residence and work permits, but are also required to fulfill certain duties, including recordkeeping obligations.

Foreign nationals applying for Dutch residence permits must provide information about their criminal record by filling out an antecedent certificate.

The new rule adds to the record-retention requirements of recognized sponsors, who are already required to keep copies of, for example, their foreign employees’ employment contract, work and/or residence permit, salary specifications and passport. Documents must be retained for five years after the sponsorship has ended.

Analysis & Comments: Recognized sponsors will need to perform careful analysis of each foreign employee’s antecedent certificate on a case-by-case basis to determine if the foreign employee has signed the certificate or not, and retain only those antecedent certificates that have been signed. This is because Dutch immigration law only allows employers to keep antecedent certificates for foreign employees who have signed the certificate and confirmed that they have no criminal history; retaining documents without a legal basis violates data protection rules under the EU’s General Data Protection Regulation.

Source: Deloitte LLP. Deloitte LLP is a limited liability partnership registered in England and Wales with registered number OC303675 and its registered office at 1 New Street Square, London EC4A 3HQ, United Kingdom.