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What is the Brexit news? The Dutch government has announced how it will administer the status of U.K. nationals in the Netherlands in the event of a “no-deal” Brexit.
Key points:
Background: The U.K. is set to leave the European Union on March 29, and although the U.K. and the EU have negotiated a draft withdrawal agreement, it has not been put to a vote in the U.K. Parliament. The vote is scheduled for next week and if it fails to pass, it is very likely that the U.K. will leave the EU without a deal. In preparation for this scenario, EU member states are now releasing plans on how they will address the end of EU free movement as applied to U.K. citizens.
Analysis & Comments: The plan provides certainty to Dutch employers and U.K. nationals in the Netherlands that they will retain free movement during the transition period and be notified of their status by the IND. Employers should ensure that all U.K. national employees are properly registered with the municipality of their residence, as the IND will be relying on this address to communicate important information to them and their family members. Employers should also ensure that sufficient preparation is afforded to those U.K. nationals arriving after 29 March 2019, who will require a work authorization and residence permit.
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.
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.
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.
What is the news? Inspectorate SZW, a unit of the Netherlands’ Ministry of Social Affairs and Employment, SZW, has released its plan for 2019-2022, identifying the enforcement of laws against illegal employment as a key priority.
What does it mean? Employers in the Netherlands should anticipate that Inspectorate SZW will be putting a heavy focus on compliance with immigration regulations and increasing its resources to conduct inspections and investigations of illegal working.
Analysis & Comments: The plan gives employers notice that illegal employment is the inspectorate’s key priority and that the agency will be investing significantly in strengthening and increasing its enforcement efforts. As a result, the number of inspections of illegal employment will increase significantly. The focus will be on recognized sponsors and organizations offering services that companies typically outsource. The Dutch Foreign Nationals Employment Act defines an employer as the party who lets another person perform activities in light of the execution of duties, profession or office, irrespective of the availability of an employment contract between the party and person. It is the employer’s responsibility to ensure that appropriate and valid immigration documents for non-EU/EEA/Swiss nationals are in place. In addition, chain liability applies: all organizations within a chain of employers are responsible for legal deployment of foreign nationals and, can, in case of non-compliance, be fined for the same violation. Companies deploying foreign nationals in the Netherlands should anticipate more inspections by Inspectorate SZW. Recognized sponsors and companies that outsource services falling within the focus areas of Inspectorate SZW should be especially aware of the likelihood of inspections.
Employers are encouraged to conduct internal reviews to ensure that they are in compliance with immigration legislation. The inspectorate is authorized to impose significant fines and sanctions such as the cancellation of work authorizations, and may list inspection results on a publicly available website and shut down businesses where severe violations are found.
What is the change? The Dutch government has set the 2019 salary thresholds for high-skilled foreign workers in the Highly Skilled Migrants program, EU Blue Card program and others.
What does the change mean? As of Jan. 1, the minimum gross monthly salary, not including an 8-percent holiday allowance, will be as follows.
Background: The salary thresholds are indexed annually. The amounts set for 2019 represents a 2-percent increase over current thresholds in each category. In order to meet the salary threshold, employers may include monthly salary components that are gross, guaranteed, and paid directly into the bank account of the employee. In-kind benefits or wages that are not guaranteed, such as performance bonuses, cannot be included to meet the monthly salary threshold.
Analysis & Comments: Employers should plan to apply the 2019 thresholds to applications filed after Dec. 31. Applications filed before the end of the year are subject to the 2018 salary thresholds.
What is the change? Dutch immigration authorities (IND) and Inspectorate SZW are conducting weekly on-site inspections of recognized sponsors to check whether employers are meeting all obligations and conditions of their sponsorship of foreign employees.
What does the change mean? Inspectors are visiting recognized sponsors and requesting to review files of expatriate employees to ensure that companies are in compliance with Dutch immigration law.
Background: Dutch companies or organizations that want to recruit highly skilled migrants or scientific researchers require recognized sponsor status with the IND. Furthermore, the recognized sponsor status enables faster and simplified processes for many residence and work permits.
The IND grants residence permits based on recognized sponsors’ own statements without conducting in-depth preliminary application checks.
The IND inspectors will review whether the recognized sponsor fulfills its obligations (duty to administer, duty to inform and duty of care). Inspectorate SZW will review whether the employees have work authorization.
Analysis & Comments: The partnership between the IND and Inspectorate SZW will be further intensified, and combined inspections will continue in 2019. Employers are encouraged to regularly conduct internal reviews of their records in preparation for an audit by inspectors.
What is the change? The Netherlands will lift work permit requirements for Croatian nationals July 1.
What does the change mean? Dutch employers will no longer be required to apply for work permits for Croatian employees.
Background: Croatia joined the European Union in 2013. Under transitional provisions, the Netherlands opted to restrict labor access for Croatians from that point until now. Legally, the Netherlands could continue to impose restrictions for another two years, but has opted not to do so. A letter from the government stating that restrictions will be lifted is available here.
BAL Analysis: The removal of restrictions will benefit Croatian nationals and the companies that employ them in the Netherlands.
This alert has been provided by the BAL Global Practice group and our network provider located in the Netherlands. For additional information, please contact your BAL attorney.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
What is the change? The Netherlands will lower government filing fees for immigration-related applications starting May 3.
What does the change mean? As part of its cost calculations, the government will not increase any filing fees and will lower fees for a number of residence permit types as well as for employers applying to become a recognized sponsor.
Background: A list of changes to government filing fees for relevant categories is as follows.
BAL Analysis: The lowering of the government filing fees represents significant savings for companies and individuals applying for work and residence permits in the Netherlands, including a 27-percent reduction in the filing fee for recognized sponsor status and a 38-percent decrease in the fees for the Highly Skilled Migrant and EU Blue Card categories.
What is the change? The Dutch Ministry of Justice recently announced that immigration authorities will increase site inspections this year to ensure that recognized sponsors are fulfilling their duties.
What does the change mean? Recognized sponsors should anticipate a site visit by the Immigration and Naturalisation Service (IND) and an inspection that will focus on recognized sponsors’ core duties—the duty of disclosure, duty of administration and duty of care.
Background: Plans for the increased inspections were developed after the Ministry of Justice audited the IND, finding that the IND had not been keeping a close enough watch on recognized sponsors. The minister of justice responded by saying he would step up enforcement to ensure compliance with recognized sponsors’ core duties. Those duties are:
Authorities have said that IND will provide advance notice of inspections, but it is not clear at this point how much notice will be given or how the notice will be provided.
BAL Analysis: The Netherlands is taking steps to ensure that recognized sponsors are meeting their core obligations. BAL is working with clients in the Netherlands to prepare for inspections and can assist with questions employers have about the increased compliance activity.
What is the change? The Netherlands has delayed the launch of a notification system for posted workers. The electronic platform was initially expected to launch in early January, but authorities have postponed it until January 2019.
What does the change mean? Currently, there is no alternative notification method and, therefore, no duty for employers to notify Dutch authorities under the EU Enforcement Directive on Posted Workers. Separate notification obligations may apply, however, to workers providing cross-border services or for intra-corporate transferees under the EU’s Intra-Corporate Transferees Directive.
Background: The Netherlands had planned to begin enforcing the EU posted worker directive’s notification requirements this year, but the electronic platform that was going to be used for the process was not ready. Authorities are now planning on launching the site in January 2019. Once it is implemented, employers posting workers to the Netherlands will likely be required to provide detailed information, including employees’ names, expected duration of the work, work location, number of posted workers, the host company’s Chamber of Commerce registration number and the nature of the work. While the notification provisions of the EU posted worker directive have been put on hold, provisions of the directive related to document retention remain in effect. These provisions require companies to retain copies of employee passports, timesheets, proof of wage payments, employment agreements and proof of social security payment on-site in the Netherlands.
BAL Analysis: While employers posting workers to the Netherlands do not currently have notification obligations under the EU posted worker directive, other notification requirements may apply for cross-border workers or ICT permit holders. Employers should also note the posted worker directive’s document retention requirement remains in effect even though the notification system has been delayed.
BAL will continue to follow the Netherlands’ implementation of the posted worker directive and will provide clients with updated information when it becomes available.
What is the change? The Netherlands has announced 2018 salary thresholds, which are indexed annually, for high-skilled foreign employees.
What does the change mean? As of Jan. 1, the minimum gross monthly wages (not including an 8-percent holiday allowance) for the following categories will be:
BAL Analysis: Companies should budget for the higher salary minimums in the new year.
Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.