Enforcement & surveillance

In the past 9 weeks, we have written various blogs about the topics that HR & Payroll professionals should take into account when employing third-country nationals. Among other things, the identification requirement, different types of residence permits, the (recognised) sponsor and the Highly Skilled Migrant scheme were discussed. But what are the consequences if the laws and regulations are not correctly applied to the employment of third-country nationals? Which authorities monitor and enforce these laws and regulations? To answer these questions, we pay attention to the enforcement & supervision when employing third-country nationals.

When you employ third-country nationals as an organisation, there are two authorities that are responsible for the correct implementation of the applicable laws and regulations:

• Immigration and Naturalization Service (IND)

• Dutch Labour Inspectorate (NLA)

Because these authorities enforce different laws, it can happen that an organisation is fined twice for one violation: once by the IND, and once by the NLA. Both authorities have an agreement with each other and share information. If one imposes a fine, the other will probably come sooner or later.

Immigration and Naturalization Service (IND)

The IND is responsible for entry and residence of the foreign national. They therefore monitor the applicable laws and regulations, which are:

• Foreigners Act (Vw);

• Foreigners Decree (Vb);

• Foreigners Regulations (Vv);

• Foreigners Act (Vc);

• Work instructions (Wi).

The IND is part of the Ministry of Security and Justice and the fines they can impose are to a maximum of € 3.000,00 per finable violation. For example, if a recognised sponsor has violated the administrative obligation for a Highly Skilled Migrant, a maximum fine of € 3.000,00 will apply. If this concerns a structural error in the procedure, as a result of which the same violation has occurred among several Highly Skilled Migrants, a fine is usually imposed for each violation. It is therefore important to set up the internal procedures for the employment or third-country nationals correctly in order to prevent structural errors. Feel free to contact us in case you would like a tailor-made advice about this.

The following sanctions apply to recognised sponsors:

• A warning (valid for 24 months)

• Administrative fine of a maximum of € 3.000,00 for legal entities, and € 1.500,00 for natural persons for violation of the same legal obligation

• Fine per violation / per foreigner

• 50% increase in case of violation of the same obligation within 24 months

• Seriousness of the circumstances and the circumstances themselves play a role in the violation / culpability

• Withdrawal / suspension of the recognised sponsorship, this has major consequences!

• Legal remedies: objection and appeal (no suspensive effect)

Dutch Labour Inspectorate (NLA)

The IND is responsible for entry and residence of the foreign national. Whether the person in question is also allowed to perform work is generally decided by the UWV (Netherlands Employees Insurance Agency). However, this authority is not responsible for enforcement. This is entrusted to the NLA. Both authorities are part of the Ministry of Social Affairs and Employment.

The NLA monitors, among other things, healthy and safe working conditions, fair pay and illegal employment. They enforce many laws, including:

• Foreign Nationals Employment Act (Wav);

• Implementation of the Foreign Nationals Employment Act (BuWav);

• Implementation Regulations on the Implementation of the Foreign Nationals Employment Act (RuWav);

• Waadi;

• WagwEU.

The fines imposed by the NLA amount to a maximum of € 8.000,00 per violation. Again, the fine applies per violation. If an organisation has committed the same offense against several foreign nationals, the fine is imposed per foreign national. If there are several entities for which work is carried out, for example in the context of hiring-in and temporary employment agencies, both the actual employer and the formal employer can be fined. In addition to monetary fines, the NLA can also proceed to preventive shutdown of business operations if there is a structural violation. Finally, the NLA also publishes all fines and sanctions imposed on resultaten.nlarbeidsinspectie.nl.

Practice example

The role played by each enforcement authority has been outlined above, but how exactly does this work?

A common example is a Highly Skilled Migrant who was mistakenly employed by an entity that is not a recognised sponsor, as a result of an internal restructuring or merger where the recognised sponsor entity has ceased to exist. Assuming that the Highly Skilled Migrant has transferred to the company that is not a recognised sponsor as of 1 January 2022, and there is an inspection by one of the two enforcement authorities in August 2022, in a nutshell the following will take place at that time:

First of all, the NLA will rule that the legal standard included in the Implementation of the Foreign Nationals Employment Act has not been met, as there is no employment with a recognised sponsor. As a result, the Wav is generally violated, and that is a finable violation. If the former employer has not reported that the employment has ended and a new employment has been entered within the non-recognised sponsor group company, the IND can still impose a fine for violating the obligation to provide information.

Finally, this unfortunate Highly Skilled Migrant in question has not met the specific requirements of his or her residence permit, as described in the Vb. This may mean that the IND will also partially withdraw the residence permit for the period in which the requirements were not met.

Conclusion

This blog is the last one in the 10-part blog series for HR & Payroll. Although the last topic is enforcement & supervision, we do not want to close on a gloomy note. This blog series has been written to provide tools and points of interest that help in the employment of third country nationals, in particular Highly Skilled Migrants. Therefore, it is our goal to ensure that as much as possible your organisation is able to stay away from the topic of this blog, by organising the procedures properly and avoiding human errors as much as possible. As always: we are happy to discuss this with you!

Do you have any questions about this topic? Please do not hesitate to contact David Wernsing.  He is happy to assist you!