mr. C. (Cigdem) Özcanmr. D.O. (David) Wernsingon
Is your organisation a (recognised) sponsor of a foreign national? And do you not meet the duty to keep and retain records (‘administratieplicht’), obligation to provide information (‘informatieplicht’), and/or duty of care (‘zorgplicht’)? In that case, there is a chance that the IND will impose a fine. Are you curious about what these obligations entail and when a fine may be imposed? Please read below.
Since the introduction of the Modern Migration Policy Act (MoMi) in June 2013, it is possible – and in some cases even required – for an employer to apply for the status of recognised sponsor at the Immigration and Naturalisation Service (IND). If recognised sponsorship is granted, the IND considers the organisation a reliable partner of the IND. As a result, the recognised sponsor enjoys some perks. For example, the IND strives to decide on applications within 2 weeks instead of 3 months, less documents will be required for a residence permit application and their applications can be submitted digitally.
As a (recognised) sponsor you are (jointly) responsible for the foreign national who is brought to the Netherlands. The IND supervises the recognised sponsor to check whether the obligations associated with this responsibility are fulfilled and, if not, to enforce them. The obligations of the recognised sponsor towards the IND under the MoMi Act are:
Duty to keep and retain records;
Obligation to provide information;
Duty of care.
Duty to keep and retain records
The recognised sponsor must keep all possible relevant information in his administration regarding its’ recognised sponsorship and the foreign nationals it employs. This must be done at the place where the recognized sponsor has its office. This obligation exists until 5 years after the moment that the organisation is no longer a recognised sponsor of the foreign national. This duty includes at least (valid) documents, such as a passport, residence permit(s), (employment) agreements and pay slips of the foreign national. But also a copy of the decision in which the recognised sponsorship is granted to the organisation falls under this obligation. For a complete list, you can always contact us.
If the IND requests information which is kept in the administration of the recognised sponsor, this must, in principle, be provided to the IND in writing within 4 weeks of the request. If this is not possible, the IND will assume that the documents are not in the records of the recognised sponsor.
Obligation to provide information
Any change in the situation of the foreign national or the recognised sponsor which may affect the residence permit, and/or -rights, of the foreign national or the recognised sponsorship must be reported to the IND. This should at least include situations in which the foreign national is no longer employed by the recognised sponsor, the wages of the foreign national no longer meet the salary criterion applicable to him/her, the wages of the foreign national are not paid, are paid too late or are paid less than the applicable salary criterion. Also consider situations involving a change in the composition of the shareholders of the company. In short, all kinds of situations fall under this MoMi obligation.
The recognised sponsor must inform the IND within 4 weeks. The 4-week period starts the moment the sponsor or the foreign national is aware – or should be aware – of the situation which must be reported, or 4 weeks after the fact to be reported has taken place. There is one exception to this 4-week period; the relocation of the address where the recognised sponsor keeps the records must be reported within 2 weeks.
Duty of care
The recognised sponsor is responsible for the selection and recruitment of the foreign national and informs the foreign national about his/her rights and obligations in the Netherlands. When this duty of care has been fulfilled is not answered by the legislator, nor by the policy of the IND. It is therefore an obligation to perform to the best of one's ability.
Nevertheless, the IND is known for making many demands on the above-mentioned duty of care. It is therefore recommended to keep all documents concerning recruitment and selection in the administration in any case, in addition to the documents already required on the basis of the administration obligation.
If the recognised sponsor does not comply with his MoMi-obligations, the IND can impose a fine of up to € 3,000 per violation per foreign national. Depending on the seriousness of the violation and the consequences for the residence permit, and/or -rights of the foreign national, the IND can decide to immediately impose a fine, without warning first. For example, this is the case if there is a violation of the obligation to provide information, or if the duty of care is violated to such an extent that the residence permit of the foreign national would be withdrawn if this was reported to the IND. The effect of the violation on the right of residence is the yardstick against which the IND determines the amount of the fine.
The IND can even go a step further if the recognised sponsor violates the MoMi-obligations several times or if there is a serious violation. In such a case, the IND can suspend or withdraw the recognised sponsorship because the trust has been damaged by the recognised sponsor. This can be problematic for organisations that want to make use of the highly skilled migrant scheme, without the intervention of a payroll organisation. After all, an employer who wants to bring a highly skilled migrant to the Netherlands must have the status of a recognised sponsor. All the more reason to continue to comply with all obligations for currently employed and future highly skilled migrants.
Better safe than sorry: We offer the possibility to audit a (selection) of the personnel files of the highly skilled migrants within your organisation. Of course we have other tips and tricks to (better) comply with the MoMi-obligations. If you are curious about this, please do not hesitate to contact David Wernsing, Drenusha Hoxha, Thom Schot of Cigdem Özcan.