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Part I: Can an expat on an ICT assignment remain work authorized as the holder of a Dutch residence permit which was granted for ICT work and is still valid beyond 29 November?

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. The member states must communicate the text of their measures to the European Commission in Brussels, ultimately by 29 November 2016. Failing timely implementation into national law, the articles of the ICT Directive conferring rights to applicants may by then have a direct and binding effect in the Netherlands.

Essential new elements the directive brings to the Netherlands and the EU 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 labour market access for dependents

In the weeks towards 29 November, I will write in Q&A format to briefly capture what the Netherlands’ executive policies for intra-corporate transferees, referred to as ‘expats’ , may look like from 29 November onwards. As the new Dutch ICT policies have yet not been published, this write-up is provisional and by no means complete and exhaustive. Nevertheless it presents - to the best of my knowledge - tentative answers to important questions of permit appliance for an expat in the Netherlands prior and after the entry into force of the ICT Directive.

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

Question

Can an expat on an ICT assignment remain work authorized as the holder of a Dutch residence permit which was granted for ICT work and is still valid beyond 29 November?

Answer

Both the directive and Netherlands’ immigration rules respect that Dutch residence permits which were legally issued and are used for ICT work prior to 29 November will remain valid until their expiration date. This goes for all types of permits issued by the Netherlands’ immigration authorities for ICT work; be it a single ICT permit advised by the work permit authority UWV or a permit as highly skilled migrant administered by the immigration department IND.

However, permits which were granted as a permit under a national scheme, may not be used for mobility in the EU after 29 November. I expect that such permits may have to be reassessed and transposed to the EU format prior to mobility appliance. Mobility permits for a series of transfers in the EU, to be applied for in the first member state or the member state of longest stay, will be a novelty anyway.

Where a new ICT assignment or the extension of an ICT assignment would have as a consequence that a new permit must be validated for a term expiring after 29 November, such permit application would have to comply with the conditions of the directive.

When to apply for a new ICT permit?

Currently, the ICT appliance combines an advisory track by the work permit organization and a residence permit adjudication by the IND. The legal maximum term for the processing of a single permit is 90 days; the work permit advise must be given within five weeks. Taking these terms into account, I would say that from 25 October applications for ICT work in the Netherlands which comply with the conditions and requirements of the directive may be requested as a permit which can be used for long-term mobility appliance in a second member state.

The next blog addresses the questions: Can expats on an ICT assignment be sponsored by companies? Can work authorization for an ICT assignment still be administered under the Dutch scheme for highly skilled migrants?

Ted Badoux

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