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Part II: 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? 

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 (ICT). 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. However, at the time of this write-up, we may safely confirm that the Netherlands’ national rules and executive policies will have been published before 29 November 2016 in the Netherlands. 

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

  • A European standard ICT permit for up to 3 years
  • Mobility in the EU during the transfer; short term for up to 90 days and long term for stays of more than 90 days in a second and third member state 
  • National industry bench mark salaries as a permit condition
  • Free national labor 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 as yet not been fully published, this write-up remains provisional and is 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.

The previous blog post about this topic can be read here.

Question:

Can expats on an ICT assignment be sponsored by companies?

Answer:

The directive allows and advocates that member states set up a “simplified procedure” for ICT applications in accordance with their national law or administrative practice. The Dutch already have one once the Modern Migration Law Act is in force, the immigration department IND operates an application scheme for highly skilled migrants in an exclusive access mode. Only employers listed with the IND in an online public register as recognized sponsor can submit single permit applications for highly skilled migrants which are processed with a turn-around effort of 2 working weeks As a further service, starting 1 September, recognized sponsors have access to the digital filing portal of the immigration department IND. So, an administrative practice of selective fast tracked processing for visa and permit appliances does exist and may be copied for ICT appliances by opening up a separate public register for ICT companies sponsoring their transferees. When opening up a simplified procedure for recognized ICT sponsors, the IND will have to observe the claim of the directive that such procedure will deliver permits in less than 90 days. 

 So, for example, the However, transfers under the directive can at no point be made exclusive to registered sponsors only as is the case for highly skilled migrants. When and wherever an intra-corporate transfer meets the requirements of the Directive, a work permit application must be accepted and processed by the competent administrative authority. Although the Directive says “Member States shall determine whether an application is to be submitted by the third-country national or by the host entity”, I expect that in the Netherlands a single ICT –permit can be applied for by either the transferee or the host entity so as not to deprive the transferee as the claimant to a personal right of a later appeal after a refusal .

Question: 

Can work authorization for an ICT assignment still be administered under the Dutch l scheme for highly skilled migrants? 

Answer: 

The ICT directive explicitly forbids member states to continue administering intra-corporate transfer appliances under an alternative national scheme. 

Here, the Dutch administration meets a major challenge. And also companies may have to rethink the migration appliance mode for their transferees. 

The administration in the Netherlands has used 2 national application schemes to accommodate expats: the work permit for an intra-corporate transferee and the sponsored residence permit for a highly skilled migrant. Moreover, there is a work permit scheme for up to 90 days for highly skilled migrants, which resembles short term ICT mobility; this scheme is in high demand by companies flying in their IT project workers from India and the US.

The 2015 permit statistics of the IND include both schemes in the annual total count of permits granted in the category ‘Knowledge and Talent’ and show that some 12.000 applications were granted that year. The IND register of companies registered as sponsor of highly skilled migrants recently counted almost 16.000 listings. Other statistics learn that approximately 6.000 international companies have a registered entity in the Netherlands which undertake substantial economic activities. From these figures and my experience in the migration practice I believe we can reasonably assume, that the ICT application practice in the Netherlands is run by the Dutch scheme for highly skilled migrants and that only a small portion of the 12.000 permits granted to expats in 2015 were processed in the ICT work permit scheme. Because of the ease of the documentation, because of the fast tracked processing standing out against not only the ICT work permit, but also the Blue Card scheme. 

Companies using the highly skilled migrants scheme for ICT transferees apparently can no longer do so after 29 November; they or the transferee will have to apply for a single ICT permit under the conditions of the Directive. Taking a transferee on the Dutch payroll of the host entity for the duration of the ICT assignment will remain allowed and therefore, the 30% Netherlands’ tax benefit to compensate a transferee for extra-territorial costs, will remain in reach for an ICT transferee. The sending company will otherwise be obliged to declare that its employee is “bound by a work contract prior to and during the transfer” and must declare that the transferee will be able to “ transfer back to an entity belonging to that undertaking or group of undertakings and established in a third country at the end of the intra-corporate transfer”. 

The challenge for the IND and the UWV will be to provide companies sponsoring ICT applications under the Directive a procedure that is as simple and fast as the successful national scheme for highly skilled migrant the Dutch are so rightly proud of. I expect, that the Dutch administration – both the IND and the work permit authority UWV – will seek to keep the benefits of the highly skilled migrants scheme for the new ICT practice under the Directive, simply for the good of the Dutch position in the global economy, which thrives on its international trade relations. The Directive accommodates the Dutch intentions by respecting alternative national schemes which are based on a still operational trade treaty or a bilateral international agreement. The concerned exemption clause in the directive may therefore save the Dutch work permit application practice for intra-corporate transferees who may claim most favorable treatment as laid down in the American- Netherlands Friendship Treaty and the Japan – Netherlands Trade Agreement. But only on a national level and within the terms of the concerned international agreement. I expect that a Dutch residence permit granted to American or Japanese expats outside the regulatory framework of the directive cannot be used for exercising mobility in the Union as provided for in the Directive. 

Ted Badoux

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