General framework

Legislation

What primary and secondary legislation governs immigration in your jurisdiction?

The relevant primary legislation in the Netherlands is the Dutch Aliens Act 2000 and the Foreign Nationals Employment Act. Relevant secondary legislation can generally be found in decrees, ministerial regulations, circulars and official guidelines. The Netherlands is also subject to EU law, which takes precedence over national primary or secondary legislation. This means that provisions in EU regulations are directly applicable, while provisions in EU directives will be transposed into national law (usually in secondary legislation). In some cases, the Netherlands will also create or amend secondary legislation to bring them in line with rulings from the Court of Justice of the European Union, even though such rulings are also directly applicable.

International agreements

Has your jurisdiction concluded any international agreements affecting immigration (eg, free trade agreements or free movement accords)?

Under EU law, EU citizens and their family members have the right to move and reside freely within the European Union, including in the Netherlands. For stays of over three months, EU citizens do not need a residence or work permit in the Netherlands; a valid passport or identity card issued by the EU member state is sufficient. Family members of EU citizens must apply for a residence permit.

Turkish nationals and their family members can derive certain immigration rights in the Netherlands under the Agreement Creating an Association Between the Republic of Turkey and the European Economic Community (Ankara Agreement).

The Dutch-American Friendship Treaty and the Dutch-Japanese Trade Treaty enable, among other things, US and Japanese entrepreneurs to apply for a residence permit as self-employed persons.

The Netherlands also has bilateral treaties regarding a working holiday programme or working holiday scheme (for people aged between 18 and 30) with the following countries: Argentina, Australia, Canada, Hong Kong, Korea and New Zealand.

There is also a special intra-company transfer work permit category under the General Agreement on Trade in Services. This can be applied for by nationals of countries that are a party to the World Trade Organization.

Nationals with a valid Dutch residence permit have free movement within the Schengen Area for short stays.

Under specific treatments between the Netherlands or the EU and international organisations, such as the International Criminal Court, NATO and Europol, employees and their family members are eligible for a special Dutch identity card issued by the Ministry of Foreign Affairs. Diplomats and their family members are also eligible for this special identity card.

Regulatory authorities

Which government authorities regulate immigration and what is the extent of their enforcement powers? Can the decisions of these authorities be appealed?

The Immigration and Naturalisation Service (IND) is an agency of the Dutch Ministry of Justice and Security and is responsible for all applications for entry and residence in the Netherlands. It is also responsible for enforcing the Dutch Aliens Act. The Ministry of Foreign Affairs is responsible for the issuance of entry visas for short or long stays through Dutch diplomatic posts. For long-stay entry visas, this is generally after the IND has positively advised the diplomatic post in respect of the application. The IND also works closely with the Marechaussee, an agency of the Ministry of Defence, which enforces border security.

The Ministry of Social Affairs and Employment is responsible for policy in respect of employment of foreign nationals. The Employee Insurance Agency, which falls under this Ministry, is responsible for labour market testing and the issuance of work permits. The Ministry is also responsible for carrying out audits through its Labour Inspectorate division, which enforces the Foreign Nationals Employment Act and relevant subsidiary legislation.

Decisions issued by these bodies can mostly be objected to in the first instance via an application for review with the relevant agency. Subsequently, an appeal at the administrative court can be filed and the final court of appeal is the Council of State (the highest administrative court in the Netherlands).

Government policy

In broad terms what is your government’s policy towards business immigration?

Dutch migration policy has been aiming to protect the Dutch labour market for decades. Over the past few years, the Dutch government has introduced less restrictive admission policies for talented employees or employees of multinational companies who meet specific criteria.

Short-term transfers

Visas

In what circumstances is a visa necessary for short-term travellers? How are short-term visas obtained?

The Netherlands is part of the Schengen area. On the basis of the Schengen Agreement, most nationalities require a Schengen visa to enter the Netherlands (or any of the other Schengen countries) for a stay of less than 90 days within a period of 180 days. Employees who do not require a (Schengen) visa are allowed to enter the Netherlands on the basis of their valid passport. A short-term visa needs to be applied for at the Dutch embassy or consulate abroad located in the country of origin or legal residence of the applicant. In general, an application form needs to be filled out by the applicant indicating the main purpose of stay.

Restrictions

What are the main restrictions on a business visitor?

A short-term Schengen visa allows the business traveller to enter and stay within the Schengen area for a maximum duration of 90 days starting from the first day of entering the Schengen area, within a period of 180 days.

A Schengen visa issued for business does not allow the business visitor to work in the Netherlands. The applicant can only perform employment activities if the employer is in possession of a valid Dutch work permit on behalf of the employee. However, foreigners who reside abroad and who are in the Netherlands to attend meetings and close (business) contracts do not need a work permit, provided that the employee stays in the Netherlands for a total period of no longer than 13 weeks within a period of 52 weeks.

Short-term training

Is work authorisation or immigration permission needed to give or receive short-term training?

A Dutch work permit is required in order to give or receive short-term ‘on-the-job’ training. However, the employer can be exempted from having a valid work permit for foreign employees who reside abroad and who come to the Netherlands to receive training or instructions within an international company in an instruction environment under the guidance of a trainer. The maximum duration for this exemption is 12 consecutive weeks within a time frame of 36 weeks.

Transit

Are transit visas required to travel through your country? How are these obtained? Are they only required for certain nationals?

Citizens of the following countries are, in principle, required to possess an airport transit visa when they are in the international transit area of airports in Dutch territory: Afghanistan, Bangladesh, the Democratic Republic of the Congo, Cuba, Eritrea, Ethiopia, Ghana, Guinea, Guinea-Bissau, Iran, Iraq, Nepal, Nigeria, Pakistan, Sierra Leone, Somalia, Sri Lanka, South Sudan, Sudan and Syria.

Visa waivers and fast-track entry

Are any visa waiver or fast-track entry programmes available?

Some Dutch diplomatic posts offer a fast-track programme (Orange Carpet Visa Facility) for business travellers who travel to the Netherlands frequently and need a short-stay Schengen visa. Some benefits of the Orange Carpet are that the entry visa is ready for collection sooner, travellers receive a multiple-entry visa and their entry visa will be valid for a longer period of time. Some non-EU nationals can enter the Netherlands without a Schengen visa.

Long-term transfers

Categories

What are the main work and business permit categories used by companies to transfer skilled staff?

Intra-company transfer (ICT) programme

When a non-European Economic Area (EEA) national who is a manager, specialist or trainee, who has his or her main residence outside the EU and an employment contract with a company based outside the EU for at least three months, is temporarily transferred to an entity based in the Netherlands, the ICT programme needs to be used. Under the ICT programme, residence permits are granted allowing migrants to reside and work in the Netherlands. No separate work permit is required. It will not be permitted to apply for any other residence permit in cases where the ICT criteria are applicable.

Highly skilled migrant (HSM) programme

When a non-EEA national is employed on the basis of a local contract in the Netherlands, the most commonly used category is the HSM programme. Under the HSM programme, residence permits are granted allowing migrants to reside and work in the Netherlands. No separate work permit is required.

Procedures

What are the procedures for obtaining these permissions? At what stage can work begin?

ICT programme

An application can be filed under the ICT programme if the employee meets the monthly gross salary threshold, which is indexed annually. The individual also needs to be employed by the company group for at least three consecutive months immediately prior to the transfer. An application can be filed while the foreign national is still abroad. Depending on the employee’s nationality, a long-term entry visa (MVV) may be required before entering the Netherlands. If this is the case, a combined application can be filed for the MVV and residence permit as an ICT, in order to achieve the required positive outcome. Once the IND has approved the application, the MVV can be collected at the consulate or embassy in the country of origin or the country where the applicant has a legal residence status. An MVV is a visa sticker that is placed in the passport. The foreign national can travel to the Netherlands on the basis of the MVV. The MVV visa sticker indicates that the ICT may work in the Netherlands as an ICT. Once in the Netherlands, the residence permit card must be collected.

HSM programme

In order to make use of the HSM programme, Dutch companies must have the status of recognised sponsor with the IND before they can file applications under the HSM programme. Once this status has been obtained, an application can be filed under the HSM programme if the employee meets the monthly gross salary threshold, which is indexed annually. An application can be filed while the foreign national is still abroad.

Depending on the employee’s nationality, an MVV may be required before entering the Netherlands. If this is the case, a combined application can be filed for the MVV and residence permit as an HSM, in order to achieve the required positive outcome. Once the IND has approved the application, the MVV can be collected at the consulate or embassy in the country of origin or the country where the applicant has a legal residence status. An MVV is a visa sticker that is placed in the passport. The foreign national can travel to the Netherlands on the basis of the MVV. The MVV visa sticker indicates that the HSM may work in the Netherlands as an HSM. Once in the Netherlands, the residence permit card must be collected.

Period of stay

What are the general maximum (and minimum) periods of stay granted under the main categories for company transfers?

ICT

In general, an ICT residence permit will have the same end date as stated in the assignment letter of the assignee. However, the ICT residence permit will be issued for a maximum duration of three years for managers and specialists, or a maximum of one year for trainees, and cannot be renewed. The individual must reside outside the Netherlands for at least six months before a new ICT residence permit can be applied for in the Netherlands. Alternatively, the individual will need to apply for a different residence status in the Netherlands.

HSM

In general, an HSM residence permit will have the same end date as the employment contract of the employee. Where the employee has a contract for an indefinite period of time, the HSM residence permit will be issued for a maximum duration of five years per issuance and can be renewed.

Processing time

How long does it typically take to process the main categories?

The processing time for the main immigration categories are as follows:

  • ICT via recognised sponsor: two to four weeks;
  • ICT not via recognised sponsor: three months; and
  • HSM: two to four weeks.

If an MVV entry visa is required, an additional processing time of two weeks will apply.

Staff benefits

Is it necessary to obtain any benefits or facilities for staff to secure a work permit?

For a work permit application, the employer is required to guarantee that a decent place of residence has been arranged.

Valid health insurance is required upon arrival in the Netherlands. Only after the foreign national is in possession of a valid Dutch residence permit card can a Dutch health insurance policy be obtained.

Assessment criteria

Do the immigration authorities follow objective criteria, or do they exercise discretion according to subjective criteria?

In general, the Dutch immigration authorities follow objective criteria when processing a Dutch immigration procedure. However, they are willing to issue work permits in special circumstances on a discretionary basis. In this case, the necessity of the work permit must be explained in detail and it is not possible to guarantee that the application will be successful.

High net worth individuals and investors

Is there a special route for high net worth individuals or investors?

A non-EEA national who wants to obtain a residence permit as a wealthy foreign investor must invest at least €1.25 million directly in a Dutch company or indirectly via an investment fund. The requirement is that the investment must be innovative or must increase employment in the Netherlands. The residence permit will be granted for a period of up to three years and can be renewed.

Is there a special route (including fast track) for high net worth individuals for a residence permission route into your jurisdiction?

See question 16. There is no fast-track route available.

Highly skilled individuals

Is there a special route for highly skilled individuals?

See ‘HSM programme’ in question 10.

Ancestry and descent

Is there a special route for foreign nationals based on ancestry or descent?

No.

Minimum salary

Is there a minimum salary requirement for the main categories for company transfers?

ICT

The gross monthly salary should be in line with Dutch market standards. The following amounts will be deemed to meet such market standards:

  • €4,500 gross per month for employees of 30 years and older (excluding 8 per cent holiday allowance); and
  • €3,299 gross per month for employees younger than 30 (excluding 8 per cent holiday allowance).

The salary must be paid directly to the bank account of the intra-company transferee. If the salary does not meet these amounts, the Dutch labour authorities will assess whether the salary is in line with Dutch market standards.

HSM

For an HSM residence permit, the following minimum gross monthly guaranteed salary thresholds apply:

  • €4,500 for employees of 30 years and older (excluding 8 per cent holiday allowance); and
  • €3,299 for employees younger than 30 (excluding 8 per cent holiday allowance).

For foreign students who have recently graduated, it is also possible to obtain a residence permit as an HSM if they meet the gross monthly salary threshold of €2,364 (excluding 8 per cent holiday allowance).

The salary must be paid directly to the bank account of the HSM. These amounts will next be indexed on 1 January 2020.

Resident labour market test

Is there a quota system or resident labour market test?

For a standard work permit application, the Dutch employer must prove that there are no suitable candidates for the vacancy on the Dutch or European labour market. For this purpose, proof must be submitted of various recruitment efforts in the Netherlands and Europe (eg, placing advertisements in the Netherlands and Europe).

A quota may be applied in the case of Hong Kong citizens, Korean nationals and Argentinian nationals who apply for the working holiday programme.

Shortage occupations

Is there a special route for shortage occupations?

There are special regulations for employees who come to the Netherlands to work as chefs in Asian restaurants, and for seasonal workers, spiritual counsellors and for certain jobs in the upper echelons of the arts and culture sector.

Other eligibility requirements

Are there any other main eligibility requirements to qualify for work permission in your jurisdiction?

No. Exact requirements depend on the immigration procedure to be followed.

Third-party contractors

What is the process for third-party contractors to obtain work permission?

In general, a work permit can be obtained by third-party contractors in specific cases. This is reviewed by the Dutch authorities on a case-by-case basis.

Recognition of foreign qualifications

Is an equivalency assessment or recognition of skills and qualifications required to obtain immigration permission?

Depending on the immigration procedure, an assessment of professional or academic qualifications is necessary. For the ICT programme, the salary threshold must be met and the employee needs to be temporarily transferred to one or several entities of the same company group within the EU. For the HSM programme, the salary threshold must be met and the salary level of the employee must conform to Dutch market standards for similar positions.

Extensions and variations

Short-term to long-term status

Can a short-term visa be converted in-country into longer-term authorisations? If so, what is the process?

Converting a short-term visa into a long-term visa is, in principle, not possible. Many individuals require an MVV to enter the Netherlands as a prerequisite for a residence permit. These nationals must return to their home country to file an application for an MVV. After the MVV has been issued, the employee is allowed to re-enter the Netherlands to seek residency.

For individuals who do not require an MVV to enter the Netherlands, a Dutch residence permit needs to be applied for at the IND. The residence permit will, in general, be issued once an extension of the work permit is granted, or if the employee meets the criteria for a residence permit with work authorisation.

Long-term extension

Can long-term immigration permission be extended?

As long as an individual meets the requirements for a residence permit in the Netherlands, the residence permit can be extended.

Exit and re-entry

What are the rules on and implications of exit and re-entry for work permits?

As long as the residence permit is valid, the foreign national is allowed to leave and re-enter the country on the basis of the residence permit card. Pending the approval of an application to renew a residence permit, a re-entry visa may be required depending on the nationality of the applicant if the residence permit card has expired.

For some work permit categories, the employee must leave the Netherlands for a certain period before a new work permit on the same basis can be issued.

Depending on the type of visa, it is possible to be outside the Netherlands for up to eight months (eg, for an HSM).

Permanent residency and citizenship

How can immigrants qualify for permanent residency or citizenship?

After five years of continuous legal residence in the Netherlands, a foreign national qualifies for a permanent residence permit or Dutch citizenship. The main requirements for permanent residence or Dutch citizenship are that the applicant has no criminal record, has successfully completed the Dutch integration exams and, in the case of a naturalisation application, will renounce any previous nationalities upon receipt of the Dutch passport.

End of employment

Must immigration permission be cancelled at the end of employment in your jurisdiction?

If an assignment or employment has ended, the Dutch immigration authorities must be notified in writing or via their online portal within four weeks of the change occurring. The original residence permit card must be returned to the Dutch immigration authorities in all cases. The employer has the duty to keep a copy of the residence permit card and the original work permit in the personnel file of the employee for five years following the year the employment or assignment ended.

Employee restrictions

Are there any specific restrictions on a holder of employment permission?

A holder of a residence permit as an ICT must always meet the salary threshold. In the event the salary of the ICT no longer meets the threshold or the employee obtains a local contract with the EU-based company, the residence permit will be revoked. A holder of a residence permit as an HSM must always meet the salary threshold. In the event the salary of the HSM no longer meets the threshold, the residence permit will be revoked.

On the basis of both an ICT and an HSM residence permit, it is generally not possible to work for another company or additionally work for another employer unless the employment activities are part of the employee’s normal work activities (eg, in the case of consultants). The same applies with regard to work permits. An exception is made for employment activities that are part of the job and other places of work are indicated when filing the work permit application. In addition, holders of an HSM and ICT residence permit are allowed to perform work activities as self-employed persons alongside their HSM work activities.

Moreover, highly skilled migrants can easily change employers while their residence permit is still valid. Conditions are that their new employer also has the status of recognised sponsor with the IND and that their salary meets the relevant threshold. The new and old employers are obliged to notify the IND about the respective departure and hiring of the employee.

Dependants

Eligibility

Who qualifies as a dependant?

Spouses, unmarried partners and children under the age of 18 are considered dependants. For the application, the relationship must be proved by submitting the legalised and translated documents proving the relationship (marriage certificate, birth certificate, unmarried certificates or single status certificates of both partners).

Conditions and restrictions

Are dependants automatically allowed to work or attend school?

Spouses and partners of employees holding an HSM or ICT residence permit automatically receive the annotation on their residence permit that they are allowed to work without a separate work permit. Where the employee holds a residence permit for paid employment with a separate work permit, the dependent spouse or partner will require a work permit in order to work in the Netherlands. Children can attend school on the basis of their residence permit.

Access to social benefits

What social benefits are dependants entitled to?

The social benefits depend on the social security status of the employee and the spouse or partner and not purely on their immigration position. Spouses or partners (and employees) can be entitled to child benefits for children under the age of 18. This entitlement depends on the social security position of both the employee and the spouse. If the spouse also works, there can be an entitlement to an allowance for the cost of childcare.

Other requirements, restrictions and penalties

Criminal convictions

Are prior criminal convictions a barrier to obtaining immigration permission?

Yes. The immigration application may not be granted if the applicant has a criminal record.

Penalties for non-compliance

What are the penalties for companies and individuals for non-compliance with immigration law? How are these applied in practice?

High penalties are imposed for illegal employment and non-compliance. The penalties for illegal employment vary and can be upwards of €8,000 per illegal employee. In the event of repetition of the offence, the fines can be doubled or tripled. In this respect, it is not only the formal employer that runs a serious risk of fines and damage to its reputation, but also the employer where the activities are performed (eg, the client) on the basis of ‘chain liability’. Additionally, in the event of non-compliance, there may be a risk of preventive suspension of work as well as withdrawal of existing permits.

If the recognised sponsor does not comply with its obligations under the current migration policy, the penalty for the employer is a maximum fine of €3,000. In the event of repetition of the offence within 24 months, the fines can increase by 50 per cent. The Dutch immigration authorities can suspend or withdraw the recognised sponsorship if the company repeatedly fails to comply with the obligations.

Language requirements

Are there any minimum language requirements for migrants?

In principle, no. Only when migrants apply for a permanent residence permit or Dutch citizenship, or when family members of a Dutch national seek residency in the Netherlands, is successful completion of a Dutch language test required as part of the integration exam.

Medical screening

Is medical screening required to obtain immigration permission?

Yes, certain nationals are required to undergo a tuberculosis test in the Netherlands to obtain a Dutch residence permit.

Secondment

Is there a specific procedure for employees on secondment to a client site in your jurisdiction?

On the basis of an ICT residence permit, it is not possible to work for another company or additionally work for another employer.

On the basis of an HSM residence permit, it is generally not possible to work for another company or additionally work for another employer unless these employment activities are part of the employee’s normal work activities (such as in the case of consultants) or if there is a secondment agreement in place between the two companies.

The same applies with regard to work permits. An exception is made for employment activities that are part of the job and other places of work are indicated when filing the work permit application.

Update and trends

Key developments of the past year

Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?

Key developments of the past year40 Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?

Immigration is generally a hot topic in political discourse in the Netherlands and any rules or policies are subject to change as a result; however, there are no specific policies in respect of corporate immigration that are relevant to highlight at this time.