The expectation is, that as of 2011, the Modern Migration Policy will come into force. With this, the current Aliens Act (Vreemdelingenwet) will be changed. This will have significant consequences for employers with foreign employees.

The following highlights the significant implications for those who participate in the highly skilled migrant scheme (‘kennismigrantenregeling’).

Sponsorship

At the core of the new law is the inclusion of rights and duties for the employer who brings over the highly skilled migrant: ‘the sponsor’. Currently, the Aliens Act only recognises rights and responsibilities for the highly skilled migrant; not for the sponsor. The duties of employers are not included in the Aliens Act itself, but are self-imposed by the employer signing the highly skilled migrant agreement as a requirement to participate in the scheme. This will all change with the Modern Migration policy. Employers will then be an official party in the procedure and will be officially involved in the process of applying for a residence permit for foreign employees. They will be able to apply themselves for residence permits, and file a notice of appeal in their own right should an application be refused. The law furthermore makes a distinction between ‘regular’ (gewone) and ‘authorized’ (erkende) sponsors. Among other things, employers of highly skilled migrants must obtain the status of authorized sponsor in order to be able to further participate in the highly skilled migrant scheme. Employers which do not obtain this status will, as of January 1st 2011 no longer be able to participate in the highly skilled migrant scheme.

Authorized sponsors

Employers who already make use of the highly skilled migrant scheme will automatically be considered authorized sponsors provided they have, in the year prior to the new law, submitted a request for a residence permit in the scheme which was granted. Other employers can request the authorized status. They need to satisfy certain conditions.

Rights

Highly skilled migrants who require entry clearance (MVV) now have to submit an application for entry clearance as well as a residence permit. This will change into a single application. In practice this will mean that once entrance is issued, the employee will be able to pick up their residence permit upon arrival in the Netherlands. For highly skilled migrants who do not require entry clearance, the residence permit can be applied for while they are still abroad so that they can collect the residence permit upon arrival.

The Immigration and Naturalization Department go even a step further for authorized sponsors. Assuming that they are aware of the rules and procedures, they are only required to submit a certificate of sponsorship with the application, confirming that the highly skilled migrant meets the conditions. They do not need to provide supporting evidence, though they are required to keep them on record and have them on hand if requested during an Immigration inspection. Furthermore, for authorized sponsors, the Immigration and Naturalization Department will decide on the application in two weeks.

Sponsorship duties

While it will indeed be easier for employers to bring over highly skilled migrants, this will bring with it that the authorized sponsor has duties.

The first of these is to report information: certain circumstances which pertain to the right to reside must be communicated to the Immigration and Naturalization Department. The authorized sponsor is also obliged to report any changes relevant to their sponsorship status, such as a change in the legal structure of the company.

Secondly, the sponsor must keep records of documents. Certain documents and information must be kept for at least five years after the authorized sponsorship has terminated.

Finally, care obligations require that the employer conduct himself as a ‘good employer’ and keeps the employee informed of his rights and responsibilities. He is also responsible for ensuring that the employee leaves the Netherlands at the appropriate time.

Enforcement

Employers are already aware that the Employment Inspection raises high monetary penalties for illegal employment, and for not complying with recordkeeping and identification duties. In addition, the new changes will also include additional sanctions that can be imposed by the Immigration and Naturalization Department should sponsors and their employees fail to comply with their legal duties. The limits established for these are € 3,000 for legal entities and € 1,500 for individuals per infraction. If an infraction is repeated the fine can be increased by 50%. In certain cases, the Immigration and Naturalization Department can suspend or withdraw the authorized sponsorship status.

Recommendation

Employers who would like to continue to employ highly skilled migrants after January 1st 2011, and benefit from the changes which will take place, would be well advised to find out now if they meet the requirements, and are able to fulfil the obligations to be an authorized sponsor. A company scan could provide insight in this regard. It is also important to establish who in your company is to be responsible for the sponsorship duties and that they are aware of the extent of these duties. In such a way companies can avoid high fines as well as be assured of retaining their authorized sponsorship status.

Prevention is better than cure. You still have three months to prepare. We will gladly advise and assist you in this preventive course of action.