M. (Miriam) Berendes-Curreymr. D.O. (David) Wernsingon
When a person from outside the EU/EEA/Switzerland - a third country national - wants to stay in the Netherlands for a longer period of time, in almost all cases an application for a residence permit has to be submitted to the IND. For many purposes of stay, it is necessary for a person or organisation to register as a sponsor (whether or not recognised).
In last week's blog, we gave a number of examples of purposes of stay for which a sponsor is required. This week, we will discuss the position of the sponsor and the consequences this may have for the employment relationship.
First of all, a distinction is made between two types of sponsors: the sponsor and the recognised sponsor. Both sponsors act as sponsors, have an interest in the third-country national's arrival and must comply with a number of obligations. The differences between both types of sponsors will be further explained below.
Both a person and an organisation can act as sponsor. The situation can therefore arise that a (future) employee is dependent on a sponsor other than the employer. For the employer, this leads to some uncertainties. If, for example, something changes in the situation of the employee's sponsor, or in the relationship between the employee and its’ sponsor, this may have consequences for the employee's right of residence. If the employee fails to report this to the employer, in the worst case the employer can be held liable for illegal employment. It is good to pay attention to this in advance in the employment contracts by means of foreign law provisions, and to discuss the role and responsibilities of the employee in this situation. Our colleagues from the Employment Law department will be happy to assist you.
Even when the employer does act as sponsor, it will have to be aware of the conditions attached to this sponsorship. After all, the sponsor has an administration and information obligation. Certified sponsors also have a duty of care.
There are a number of residence permits that can be applied for by the employer, such as:
Work permit (TWV) and combined permit for residence and work (GVVA);
Working experience or seasonal worker;
Regular paid employment;
International Trade Regulation;
Intra-corporate transferee (Directive Intra Corporate Transfer 2014/66/EU);
Essential start-up personnel;
European Blue Card;
Highly Skilled Migrant, guest lecturers and trainee doctors; and
Researcher within the meaning of Directive (EU) 2016/801.
For the last two purposes of stay, recognised sponsorship is mandatory.
The employer may also apply for a permit for the family members of its’ employee. In that case, however, the employee acts as sponsor and the employer as authorised representative of the sponsor. The employer is therefore not subject to an administration obligation and/or information obligation with regard to the family members; the responsibility for compliance with these obligations lies with the employee.
Each purpose of stay has specific conditions. However, there are a number of conditions that every third-country national with one of the abovementioned purposes of stay must meet. The sponsor is partly responsible for complying with these conditions:
The foreign national holds a valid passport;
The foreign national does not pose a threat to national security or public order;
The foreign national concludes a Dutch healthcare insurance within 4 months after his arrival in the Netherlands;
The foreign national will undergo a TB test, unless he is exempted for this;
The foreign national registers in the BRP.
The employer remains the sponsor of the foreign national until it is terminated. This is possible under the following conditions:
the employee is no longer employed by the employer and has reported this to the IND;
the employee has left the Netherlands and the employer has reported this to the IND;
the residence permit has been withdrawn;
the employee has been granted a residence permit for an indefinite period of time or for another purpose for which the employer does not act as sponsor;
the employer is no longer allowed to act as a (recognised) sponsor.
In addition to the employer, the employee also has a number of obligations. For example, the employee must comply with the obligation to provide information and report important changes concerning his right of residence to the IND.
The conditions which apply to the recognised sponsor are virtually identical to those of an employer who acts as a 'regular' sponsor. There are, however, a number of differences.
As indicated earlier in this blog, there are a number of purposes of stay for which recognition as a sponsor is mandatory. This concerns the purposes of stay of Highly Skilled Migrant, guest lecturers,trainee doctors, and researcher within the meaning of Directive (EU) 2016/801. Recognition as a sponsor also entails that the sponsor must fulfil the conditions of the duty of care, in addition to the administrative and information obligations.
In addition to these additional obligations, recognition as a sponsor also provides a number of advantages:
the IND applies a target decision period of 2 weeks for making a decision - in the case of a TWV or GVVA this is 7 weeks;
the recognised sponsor has to submit fewer documents with the application;
the recognised sponsor has a designated contact person at the IND.
How an organisation qualifies for sponsor recognition, which conditions it must meet and which points of attention are involved, will be discussed in our blog next week.
Do you have any questions about this topic? Please do not hesitate to contact Miriam Berendes-Currey or David Wernsing. They are happy to assist you!