Take your own responsibility?
Unfortunately, we see it happen with some regularity that the residence permit of a Highly Skilled Migrant is revoked because the employer (often unintentionally) failed to meet the conditions of the Highly Skilled Migrant scheme. But why is that? Before we can address this question, let us consider the reasons why a Highly Skilled Migrant’s residence permit can be revoked.
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Employer is not a recognized sponsor (anymore)
First condition of the Highly Skilled Migrant scheme is that the employer is a recognized sponsor.
There will be no misunderstanding about this when a highly skilled migrant is admitted for the first time. If an employer who is not a recognized sponsor applies for a highly skilled migrant, the application will simply be rejected by the IND. Nothing to worry about.
But suppose a Highly Skilled Migrant, who has a valid residence permit, changes employers, then according to the regulations a simple notification by the employer is sufficient for the IND. The residence permit continues undisturbed, no application needed. For the Highly Skilled Migrant in such a scenario, it is quite possible that he/she unknowingly enters the employment of an employer who is not a recognized sponsor. It can also sometimes happen that the employer loses its status as a recognized sponsor due to problems with the IND or Labor Inspectorate.
It happens that employers are not aware that recognized sponsorship is a condition for employing a Highly Skilled Migrant. It has also happened that within a group context that Highly Skilled Migrant is formally employed by a sister company of a recognized sponsor. These are practical examples of a Highly Skilled Migrant ignorantly working for an unauthorized referent.
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The salary no longer meets the standard
If the salary no longer meets the applicable standard, the IND can revoke the permit.
A common mistake on the part of the employer is to fail to increase the salary in line with the annual indexation. Each year, the salary standards are increased by the IND based on indexation. Usually these are small increases of a few hundred euros per month.
Where it can also go wrong is if the Highly Skilled Migrant gets into a higher salary category by changing employers, but the salary does not go along with it. A Highly Skilled Migrant under 30 has a lower salary standard than a Highly Skilled Migrant over 30: in 2024 it will be €3909 and €5331, respectively. If a Highly Skilled Migrant passes 30 with his current employer, he will remain subject to the under-30 standard. If the highly skilled migrant of now over 30 changes employers, the salary requirement jumps to the standard of 30 plus.
Personal responsibility
Surely these examples should rather belong to the of responsibility of the employer? Why then does the IND let the employee bear the brunt of shortcomings on the part of the employer? The answer: the Highly Skilled Migrant’s own responsibility.
The IND believes that a Highly Skilled Migrant also has his own responsibility to ensure that the conditions of the Highly Skilled Migrant scheme are met. A highly-skilled migrant is also expected to investigate whether all the conditions of his or her highly-skilled migrant permit are met. That the IND is also allowed to do this is shown by a recent ruling by the Council of State (the highest court in immigration law):
- The foreign national argued in vain that the State Secretary did not provide adequate reasons why she herself should have reported her underpaid salary to the State Secretary.The State Secretary rightly argued that the foreign national herself had to pay attention to whether she still met the requirements of her residence permit. (…) The fact that the State Secretary also objected to the employer that he had violated his duty of care towards the foreign national did not alter this. The employer’s duty of care does not detract from the employee’s own responsibility.
Moral of this story is: Highly Skilled Migrant, take your own responsibility! But how?
Firstly, the IND’s website has a public register of recognized sponsors. This is a list of all companies that are recognized sponsors. When checking whether a company is on this list of recognized sponsors, we recommend first looking up your employer’s KvK number through the Chamber of Commerce website and using this to search the public register. The reason is that many entities have names that are similar.
If your employer’s Chamber of Commerce number does not appear in the public register, this is a reason to ask questions. Note many Highly Skilled Migrants are outsourced through payroll companies (which is the legal employer) to their actual employer. The salary specifications and employment contract should show the correct name of your legal employer. Sometimes companies have just become approved sponsors and their name is not yet listed.
The applicable salary requirements in a given year can also be found on the IND website. In most cases this is clear, but as just noted, it is possible that because you change employers you may fall into a higher salary category. So it is important to be clear which category you fall under.
What should you do if you find out that you do not meet the requirements? We recommend that you contact your employer to raise the issue. We are aware of many cases where employers, with the best of intentions, unknowingly make a mistake and are happy to correct it. Formally, the IND expects you to bring this to their attention, but fairness dictates that this does not necessarily mean that the Highly Skilled Migrant will be “rewarded” by the IND. It is quite possible that the IND may just as well proceed to revoke the residence permit. Although with the compulsory proportionality test by the IND, this may be taken into account positively by the IND in any revocation.
Questions about the conditions for Highly Skilled Migrants? Call us, 0031202232466, or email us info@arslanlitadvocaten.nl. We will be happy to assist you.
