by Thijs Esser & Fraukje Panis
First published in ACCESS Autumn 2013 e-zine
On the 1st of June, 2013, the new Modern Migration Policy Act came into force, changing the immigration procedures for regular purposes such as employment, study and family reunification.
This new law aims to simplify immigration procedures to strengthen the Dutch economy and make the knowledge industry more competitive.
Under the new law employers as legal entities will become (authorised) ‘sponsors’ of migrants who intend to move to the Netherlands for employment. The sponsor guarantees the immigration position of the migrant and has the advantage of applying for the required permits while the migrant is still abroad.
For employers of highly skilled migrants authorised sponsorship is compulsory.
However, employers who were admitted earlier by the Immigration and Naturalisation Services (IND) to the highly-skilled migrant program should have become automatically an authorised sponsor, provided they have been granted at least one application for a residence permit to employ a highly skilled migrant in the period since June 1st, 2012.
Especially where it concerns separate applications for a regular provisional residence permit (MVV) and a residence permit, the new law will improve the efficiency of the procedure by combining the two separate applications into one single procedure, thus saving a lot of time.
As for being a sponsor, the new law requires employers to fulfil several legal obligations.
Sponsors will have a duty to inform the IND about all changes in the residence status of the migrant. Sponsors have an administrative duty, which means all relevant information and documents must be in their administrative records and kept for five years after the sponsorship has ended.
In addition, there is a duty to care, meaning careful recruiting and selection, which should not be done at random. Sponsors must be able to demonstrate that they used care in recruiting the highly-skilled migrant and have informed him or her of his or her rights and obligations pertaining to status in the Netherlands as a highly-skilled migrant Also, the sponsor is responsible for the migrant’s repatriation. If the migrant is found to be staying illegally in the Netherlands within a year after the sponsorship has ended, any costs of repatriation can be recovered from the sponsor.
In a case where the sponsor fails to fulfil the legal obligations, the IND can impose sanctions.
When a first iolation is detected, usually IND gives a warning to sponsor. Furthermore:
- A fine of up to €3,000 per violation
- Revocation of recognised sponsor status, and a five-year ban from participating in the Highly Skilled Migrant Scheme
- The filing of a report with the Public Prosecutor
- On subsequent violations an administrative fine is imposed
Eventually the IND could also retract the authorised sponsorship from the employer.