Breaking: ICT Directive Implemented in Dutch Immigration Laws
On 29 November 2016, the Dutch implementation of the Intra Corporate Transfer Directive (2014/66) (the "ICT Directive") entered into force in the Netherlands. Multinationals that second employees to the Netherlands are impacted.
The ICT Directive has introduced a European-wide standard to mobilize educated non-EU employees within the same group of companies throughout the EU. The scope of the ICT Directive overlaps with several other permit categories available in the Netherlands (e.g. the Highly Skilled Migrant permit, the intracompany transfer work permit and the European Blue Card). These other permit categories remain available, but permit applications thereunder will not be granted if the ICT permit conditions are triggered.
1. Terms and Conditions
The ICT Directive applies to non-EU employees who reside outside of the EU and who are bound (and remain bound during their secondment) by a work contract with a non-EU entity belonging to the same group of companies which is established in the EU Member State to which they are seconded. Further - non-exhaustive - terms and conditions are as follows:
- The individual must have been employed within the group of companies for at least three consecutive months immediately prior to the secondment.
- The individual must qualify as a "manager", "specialist" or "trainee" under the definition thereof stipulated in the ICT Directive.
- The individual must have the qualifications and experience required by the host company to which he/she is seconded as manager or specialist. If the individual is seconded as trainee, a university degree and training agreement are required.
- The individual must enjoy equal treatment with nationals occupying comparable positions as regards the remuneration he/she receives during the entire secondment. In principle, the salary thresholds for a Highly Skilled Migrant are considered for this purpose.
- The individual is intended to return to a group company outside of the Netherlands after the secondment.
- Sponsors based in the Netherlands are not required to register as "Authorized Sponsors" with the Dutch immigration authorities ("IND"), in order to sponsor an ICT permit. The status of Authorized Sponsor is required to sponsor - among others - a Highly Skilled Migrant permit. Regardless, Authorized Sponsorship can still be of interest for companies that apply for ICT permits. Authorized Sponsors benefit from prioritized processing of their permit applications. Furthermore such applications require less supporting documentation;
- In principle, short duration transfer to another group company in another EU Member State only requires a notification to be filed in that other EU Member State, upon which the individual can start work activities immediately. The maximum duration is 90 days in a 180-day period.
- Transfer to another group company in another EU Member State that exceeds the duration of 90 days in a 180-day period either requires notification in that other Member State or a long-term mobility permit. EU Member States are free to choose. The Netherlands chose the latter. The individual can start work activities immediately after the application has been filed.
- The individual must remain outside the Netherlands during the ICT permit application procedure, even if he/she has a nationality that allows him/her to enter the Netherlands without an entry visa.
- The maximum duration of the ICT permit is three years (one year for trainees).
- Upon expiration of the ICT permit, a permit application will have to be filed under an alternative permit category (e.g., Highly Skilled Migrant or European Blue Card) to facilitate continued residence and work privileges in the Netherlands.
- Residence rights based on an ICT permit do not count towards the "5-year uninterrupted stay" condition to obtain a permanent residence permit.
- Sponsorship for an ICT permit (as opposed to the sponsorship for a Highly Skilled Migrant permit) cannot transfer to an entity outside the group. Consequently, if an individual intends to take up employment with another company, a new permit will be required.