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4

Part IV:

  • What are the mobility features of an EU ICT permit? How is ICT mobility to the Netherlands applied for?
  • To which other European countries can ICT mobility from the Netherlands be applied for from 29 November?
  • Do the national ICT programs of the Netherlands have cross border mobility features?

The Netherlands is one of the 26 member states of the European Union committed “to bring into force the laws, regulations and administrative provisions necessary to comply” with Directive 2014/66/EC of 15 May 2014 on the conditions of entry and residence of third country nationals in the framework of an intra-corporate transfer, formerly known as intra-company transfer. The member states must communicate the text of their measures to the European Commission in Brussels, ultimately by 29 November 2016.

To complete the Netherlands’ implementation of the Directive, the Netherlands Immigration Department IND has published the application forms for the new EU ICT permit on its website.

Essential new elements the Directive brings to the Netherlands and Europe are:

  • A European standard ICT permit for up to three years
  • Mobility in the EU during the transfer
  • National industry bench mark salaries as a permit condition
  • Free national labor market access for dependents

In this last write-up in Q&A format I will focus on mobility in the EU to and from the Netherlands for holders of the new ICT permit which has become available as of today: 29 November.

For more information about the implementation of the directive, see our news article: The European intra-corporate transfer permit

Question:

What are the mobility features of an EU ICT permit? How is ICT mobility to the Netherlands applied for?

Answer:

The intra-EU mobility of the Directive can’t be obtained for an expat without an EU ICT permit. Mobility is an asset of the new EU ICT permit, that has been obtained in the first receiving member state. It can be applied for a short or for a long term assignment with a group company in another EU member state.

Short term mobility is for up to 90 days in a time window of 180 days; long term mobility is for transfer-on assignments of more than ‘90 in 180 days’. EU ICT permit holders can be send off on transfer-on assignments for any work in the permitted ICT category: manager, specialist or trainee.

Clearly, the ‘90 in 180 days’ term for short term transfer-on assignments complies with the term of visa free stay for non–EU nationals and their right of visa free circulation in Schengen as holder of a residence permit in any of the Schengen countries.

However, this free movement in Schengen does not include work authorization. In such cases, global companies would still have to assess national waiver programs or apply for a new work authorization in the second or third member state. This is what the mobility features of the Directive were designed to remedy.

Short term transfer-on assignment to the Netherlands need to be notified with the Dutch work permit authority UWV ultimately two days prior; the forms for notification will be available shortly. Both the sending and the receiving employer can take care of the notification.

The notification requirement is not a new permit; the Dutch government takes the intra-company work permit issued in the first receiving Member state for granted. The notification exclusively serves the wish of the Dutch administration to monitor labor migration to the Dutch markets.

Companies need to be mindful that a short term transfer-on assignment should not exceed the validity of the EU ICT permit.

Long term transfer-on assignments to the Netherlands will require a work permit ‘long term ICT’; the application forms for this permit category have been made available by work permit authority UWV.
To comply with the objectives of the Directive, the ‘long term ICT’ permit is adjudicated by the Dutch under fewer conditions and less documentation than a first EU ICT permit: the required in-group job past, the qualifications for the job title nor the trainee plan for the trainee on transfer need to be submitted again. The entry clearance visa requirement is also waived. Otherwise, the application is a regular single permit procedure inclusive of an advisory report by work permit authority UWV and to be completed within a legal time frame of 90 days’ maximum. Companies need to be mindful that a ‘long term ICT’ can never exceed the validity of the EU ICT permit it is based on.

Question:

To which other European countries can ICT mobility from the Netherlands be applied for, how and as of when?

Answer:

As per 29 November 2016, the Directive has been transposed into the national legislations of the following member states:

  • Bulgaria
  • Czech Republic
  • France
  • Greece
  • Hungary
  • Lithuania
  • Netherlands
  • Rumania
  • Sweden; expected first half of 2017

The other member states, inter alia Germany and Belgium , are still in the preparatory stages of implementing the Directive.

Details on procedures for short and long term transfer-on assignments in the listed member states I hope to report later.

Question:

Do the national ICT programs of the Netherlands have cross border mobility features?

Answer:

Yes, we have; quite substantial ones, I may say.

Firstly, there is a short term – up to 90 days - work permit appliance based on the Highly Skilled Migrants (HSM) scheme. Registered HSM sponsors can obtain fast tracked work permits by salary category only for highly skilled migrants. In the future this permit may be an alternative option for expats with an EU ICT permit in another member state. Nowadays, the category is mostly used for expats from China, India and the United States.

Further, a Netherlands’ HSM permit allows expats to be absent for work abroad for as much as 8 months, conditional to remaining domiciled and on full HSM salary pay with their employer. However, the need of an additional work authorization in the receiving Member state, will remain as well.

Finally, the mirror image of this cross border mobility is also available in Dutch labor migration policy. Expats on a work authorized residence permit in the EU or EEA, can obtain a long term HSM work permit for commuting between work in the Netherlands and home abroad.

This program may be considered an option in cases where the payroll involved has disqualified the priority of the EU ICT permit.

Ted Badoux