The Inspectorate of the Ministry of Social Affairs and Employment conducts inspections in the context of the Foreign Nationals Act (FNA) at workplaces. During an inspection in a restaurant in Amsterdam, the inspectors found a cleaner with a foreign nationality at work. At request of the Inspectorate for a work or residence permit, the cleaner could not hand over such documents.
Pursuant to article 2 FNA it is prohibited to let a foreigner carry out work without a work permit. In case of a breach the Inspectorate can impose an administrative fine on the employer.
Subsequently the Ministry imposed by order a fine on the restaurant because of breach of the FNA. To this order the restaurant made objections but by order the Ministry considered the objection unfounded. Hence, the restaurant appealed against this order.
The restaurant argues it cannot be blamed for the breach. Therefore the restaurant stated that it had contacted the Immigration and Naturalisation Service in order to gain information about the obligations under the FNA. Thereafter the restaurant put forward that it did everything possible to carefully examine the identity of the cleaner as required under the FNA, such as requesting relevant documents from the employment agency as verification by means of a fingerprint system.
The court argues the employee of the restaurant did not sufficiently check the identity of the cleaner. The examining employee could have known on the basis of the photographs of the foreign national and the person under whose name the foreign national was working at the restaurant, that they were two different persons.
The FNA requires a careful examination of the passport photos and since the restaurant failed to do so, the court ruled that the Inspectorate could have justifiably imposed the fine on the restaurant.