With effect from November 29, 2016 the Netherlands will implement the European Union Directive regulating the entry and residence of non-EU nationals who are transferred within a company. The Netherlands is one of the EU Member States to have approved Directive 2014/66/EU. Only Denmark, Ireland and the United Kingdom are not participating. The Directive stipulates the conditions that Member States may impose on the residence of non-EU nationals within the context of a corporate transfer, also known as an intra-corporate transfer (ICT).

Objective of the ICT Directive

The ICT Directive was introduced in order to create more labor mobility opportunities for non-EU citizens (also referred to as third-country nationals) within the EU; in this case, specifically for personnel of international groups.

Whereas it is currently still necessary to check whether a separate work and/or residence permit is necessary for each Member State where a group employee performs their work, after the ICT permit has been introduced this same group employee can, subject to conditions, also work for undertakings located in other Member States. The Directive covers managers, specialists (key personnel) and trainees who are not nationals of one of the EU Member States, who have already been employed by a company resident outside the EU for at least three months and who are temporarily transferred, on market terms, to one or more undertakings of the company within the EU.

ICT permit - one permit for working in more than one Member State

The ICT permit is valid for both residence and work, which means that it includes work authorization and therefore it is not necessary to apply for a separate work permit.

The ICT permit must be applied for in the Member State where the person intends to stay the longest. The permit may be issued for a maximum of three years for key personnel and a maximum of one year for trainees. It is important to note that it is not possible to extend the stay in the EU by virtue of the Directive and the person is expected to leave the EU at that time. There is a six-month stand-down period before a new ICT permit can be applied for.

As soon as a person holds an ICT permit for a Member State, they can use this to claim their right to work in one of the other Member States. A distinction is thereby made between ‘short-term mobility’ and ‘long-term mobility’.

Short-term mobility is permitted for no more than 90 days within a 180-day period per Member State. For this mobility, it is not necessary to apply for a residence permit in the other Member State. Member States may impose the condition that a notification is submitted before the activities commence. The Netherlands has indeed opted to implement this notification obligation.

Long-term mobility is longer than 90 days within a 180-day period and a second residence permit must be applied for in the other Member State. Several more flexible entry requirements apply in this case. While the application is still being processed by the authorities, the employment activities may begin; it is thus not necessary to wait for a decision.

As such, the ICT Directive makes temporary intra-group transfers to other EU Member States possible with greatly eased conditions applying.

Overlap with highly skilled migrant program

The target group of the ICT Directive overlaps to a great extent with that of the existing national highly skilled migrant program. However, the applicant for a residence permit cannot choose between the highly skilled migrant program and the ICT permit. For those falling within its scope, the ICT Directive offers the only possibility for residence.

Differences between the highly skilled migrant program and the ICT permit

It is expected that people who currently meet the conditions for a residence permit for a highly skilled migrant will also probably meet the conditions for an ICT permit.

We therefore do not expect international groups to have to make major changes to their Global Mobility policy in order to ensure that their staff also qualify for a Dutch residence permit in the future.

However, the fact is that the two types of permits have several essential differences. The more important differences are listed in the following table:

 

Highly skilled migrant permit

ICT permit

Salary criteria

The minimum gross monthly salary with which the highly skilled migrant must comply is set annually.

In principle, a competitive remuneration must be paid. This is, of course, open to interpretation.
The authorities argue that the highly skilled migrant criterion is the benchmark for a competitive salary.
In other words – the salary requirements are expected to be equal for both categories.

Maximum duration

The duration is linked to the end date in the contract, with a five-year maximum for a contract for an indefinite period.

Key personnel can obtain a residence permit for a maximum of three years. This is limited to one year for trainees.

Can the residence permit be extended?

Yes, an extension can be applied for, regardless of the length of previous stays in the Netherlands.

Extension is possible until the maximum stay is reached. This includes previous stays in other Member States. Once the maximum period has been reached, the stay cannot be extended by virtue of the Directive.
It is however possible to apply for a stay by virtue of other legislation. 

Accrual of residence right

Yes, during a lawful stay in the Netherlands, the highly skilled migrant accrues residence rights that are important for a permanent residence permit or for naturalization, for example.

No, an ICT permit is regarded as being for a ‘temporary’ stay and as such no residence rights are accrued. Therefore, the time spent in the Netherlands pursuant to this permit is not added to the ‘five-year period’, which applies for a permanent residence permit or for naturalization.

‘Authorized’ sponsor requirement

Yes, the highly skilled migrant program only allows employees of authorized sponsors to use the program.

No, employers without an authorized sponsor status may also use the program for their employees. However, certain more flexible procedures only apply to authorized sponsors. Their applications are likely to be dealt with quickly and less documentation is needed to substantiate them.

Opportunity for labor mobility within the EU

No, a highly skilled migrant permit only allows work to be performed in the Netherlands. Any employment activities undertaken in another EU member state are subject to the labor restrictions in that jurisdiction.

Yes, once an ICT permit has been obtained, it is possible, subject to conditions, to temporarily perform activities at an undertaking of the employer in another Member State. The precise conditions depend on the duration of the secondment and the Member State where the activities are performed.

 

Application procedure

Although it is not entirely clear at present what the application procedures will look like in practice, the IND has promised that applications filed before November 29, 2016 will in any case be finalized under the highly skilled migrant program.

Applications for a stay as a highly skilled migrant that are filed after November 29, 2016, but which the IND decides fall under the scope of the Directive, will be issued ex officio, i.e. as an ICT permit. This is important in order to prevent applications being rejected due to procedural errors, which could have unfortunate consequences.

Furthermore, the existing highly skilled migrant permits for your transferred group employees will continue to be valid. Under the highly skilled migrant program, this will even be possible if their assignment is extended. After all, the ICT Directive only applies to those who, at the time they applied, were not yet living in the EU.

We can well understand that you may wish to have the above explained in more detail, with a focus on your specific Global Mobility policy. We would naturally be pleased to be of assistance.

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