Recent economic downfall due to the Covid-19 pandemic has led to much uncertainty amongst many highly skilled migrants. Not only do they fear losing their jobs, they fear losing their permits as a result of that.
A recent post of Arslan | Lit explains the possibility under Dutch labor law of terminating a labor agreement by mutual consent. Often the employee is offered a handsome severance package if he/she agrees to this offer. Sounds nice from a labor law perspective. But what about immigration law? What are the consequences if a highly skilled migrant voluntarily agrees to the termination of his/her labor agreement?
In general, one may assume that the duration of the residence permit is connected to the duration of the labor contract. If someone is given a year contract by the employer, the permit will also be valid for one year. This is maximized to five years, meaning that with an indefinite labor contract one will be given a residence permit for five years, which can be extended of one so desires. It is unlikely, if not impossible, that someone has a residence permit as a highly skilled migrant which is longer than the underlying labor contract.
In the situation that an employer terminates the labor agreement before the end of the duration of the contract, the highly skilled migrant generally will be given a three months search period by the IND. This means that one has three months to find work elsewhere as a highly skilled migrant without is having consequences for the permit, or the continuation of stay. Ergo one will not have any gaps in their stay, which could hinder ones’ claim to permanent residency, or unrestricted labor market access.
If the highly skilled migrant finds work outside the three months search period, even if the IND finds this out months later, this will cause a gap in the continued stay and therefore have a potential negative effect on any entitlement to permanent residency.
Bear in mind that the three months search period is only applicable if the duration of the permit allows it. For instance, if the contract is terminated while the residence permit is only valid for one more month, then there is search period of only one month not three. The search period cannot extend the duration of the permit.
To answer the question at hand, what are the consequences if a highly skilled migrant voluntarily agrees to the termination of his/her labor agreement? There is a misconception that voluntary unemployment automatically causes the permit to be revoked without any possibility to the search period. This was so until a few years ago, but this is no longer the case. So, a highly skilled migrant who enters an agreement with his employer to terminate the labor agreement by mutual consent, is still entitled to the three months search period if the duration of the permit allows is. This also applies of there is a situation of involuntary unemployment, the highly skilled migrant will have his/her three months search period.
Needless to say, a highly skilled migrant permit, is a residence permit that is dependent on an employment situation. Termination of one’s employment, will have consequences for the residence situation. We therefore recommend that in all instances where your employment is at risk, you reach out to one of our legal team to discuss the implications it has on your permit and above all to see what your alternatives are.