Dutch Foreigners (Employment) Act amendments
Dutch Foreigners (Employment) Act Implementation Decree 2022
Dutch Foreigners (Employment) Act amendments
On 1 January 2022, the Dutch Foreigners (Employment) Act was slightly amended. The most important change is that work permits can be issued for three years again instead of for one year. Despite this increase, the underlying test to assess "priority supply" has remained unchanged and continues to be a bottleneck in Dutch labour laws and regulations. It would be more advantageous to replace the generic and vague priority supply test with an arrangement that would make recruiting people from outside the European Union (and the European Economic Area (EEA) and Switzerland) possible for professions and/or sectors that experience considerable shortages at any point in time (eg, healthcare). Certain requirements may still be necessary, but this would still facilitate the employment of foreign nationals – also referred to as third-country nationals in legal jargon – who are highly sought after, instead of EU, EEA, or Swiss foreign nationals, because those nationals are allowed to work in the Netherlands without any prior consent. Therefore, the legal uncertainties of the current priority supply test makes it insufficient; however, this could be improved under the new minister of social affairs and employment.
For positions that require highly qualified personnel (ie, those with a gross monthly salary of at least €3,549 for the under-30s and €4,840 for the over-30s) or specialists, trainees or executives within an international group of companies, there are already effective arrangements in place:
- the highly skilled migrant scheme;
- the blue card scheme; and
- the intra-corporate transfer scheme.
As far as the normal priority supply test is concerned, it largely concerns foreign nationals whose salary, position and/or educational level does not meet these criteria. However, the exception is the freedom to provide services. In brief, if a third-country national is allowed to work and, therefore generally also reside in EU member state A, they may also temporarily provide services to their employer in member state B without a work permit for member state B if certain conditions have been met and the relevant notifications have been made. Salary, position and/or educational level do not play a significant role in this respect (even though the main terms of Dutch employment law must be satisfied). This is sometimes referred to as a "Van der Elst" or an "Essent" situation, named after important judgments by the European Court of Justice in this area.
Dutch Foreigners (Employment) Act Implementation Decree 2022
At the same time that the amendments were made to the Dutch Foreigners (Employment) Act, the new Dutch Foreigners (Employment) Act Implementation Decree 2022 (the Decree) also came into effect, which was a recodification (ie, an act, decree or regulation that has been reclassified because it has been amended and supplemented so frequently that it is no longer manageable). The majority of changes are limited to the numbering and placement of information within the Decree; few alterations have been made to the content itself. This has created practical issues for lawyers, who now need to adjust their templates and learn how to navigate the new document. For example, the highly skilled migrant scheme was previously included under article 1d of the former Decree, but this is now under article 2.1. The Decree still includes the following exceptions to the regular work permit obligation:
- work permit exempt activities;
- the highly skilled migrant scheme;
- the blue card scheme;
- the implementation of the researcher directive; and
- the intra-corporate scheme.
More differences in the Decree are likely to emerge as it is examined in more detail. An example of changes to the Decree's content can be seen in the simplification of the article on the regulations of international trade (currently article 5.2(1) and previously article 1k). While a substantial simplification has been made, there is not much change in practice, as the Employee Insurance Agency has always applied a broad interpretation and application of that paragraph. Incidentally, it concerns a scheme where approval is requested once for a "procedure in the context of international trade" – which could be anything – after which it is necessary to only make a timely notification of the third-country nationals who are coming to the Netherlands to work on the relevant project. After such notification is made, they can work in the Netherlands without a work permit within the limits of that procedure and for the period for which approval has been given (typically a maximum of three years at most).
If a third-country national stays for longer than 90 out of 180 days in the Netherlands in this context, a residence permit for paid employment can be requested at the Immigration and Naturalisation Service. This is a practical solution with minimum requirements, especially for companies that carry out larger projects in the Netherlands with multiple employees where it is not entirely clear in advance:
- the arrival and departure dates of such employees; or
- which third-country nationals will be working on which projects.
The Employee Insurance Agency performs a relatively strict test of the application for approval, which is best to be handled by a specialist. Once approval has been obtained however, the next steps are considerably easier.
Implementing regulations
The Decree also includes the implementing regulations (the Regulations) to the Act, which were also "recodified". For example, additional work by students was included under section 33 of the former Act and is currently included in item 8.3.c.7 of the Regulations. As above, a logical classification and different numbering system has been used, but the content of the section has undergone only minimal changes. There are a few codifications of already existing case law and legal practice, in addition to some sporadic tightening. However, no dramatic changes have been identified so far.
For further information on this topic please contact Bart Maes at Maes Law by telephone (+31 85 902 12 70) or email ([email protected]). The Maes Law website can be accessed at www.maeslaw.nl.