Labour migration in the Netherlands: new policies and court rulings

Everaert Advocaten is a respected leader in Dutch migration law. Based in Amsterdam, its multilingual team advises both short- and long-term expats on residency- and migration-related legal issues.

In addition to some interesting court rulings on migrants working in the Netherlands, several new Dutch migration policies have recently come into effect.

These legal changes create new travel and labour opportunities for, amongst others, foreign conservators and curators, and citizens of new European Union states, the UAE and some ACP countries.

We take a look at the recent legal changes below, and what they mean for foreign nationals.

New policy for conservators and curators

As you admire the paintings of Rembrandt and Van Gogh in the Rijksmuseum and Stedelijk Museum, you might think for a moment about the experts who carefully maintain these wonderful pieces of art. Many conservators are foreign nationals, expats like you.

Due to the involvement of Wim Pijbes of the Rijksmuseum and Gertjan van Andel of Everaert Advocaten, work permits for specialist conservators and curators from outside the European Union can shortly be granted for three years without a resident labour market test of the applicant.

There will be no change in the requirement of market conformity of the salary. After three years a renewal of the work permit can be applied for, again without a resident labour market test.

The new regulation will cover conservators and curators from all museums that are members of the "Vereniging van Rijksmusea" (Association of National Museums).

Working during an unauthorised stay

Foreign nationals need an authorised stay to work legally in the Netherlands. But the other way around is not always true. Sometimes there is judicial discretion: the work may have been legal although the stay was not.

Erik Scheers of Everaert Advocaten successfully fought off fines which the Dutch Labour Inspectorate had imposed on the owner of a hair salon who had rented out a chair to two African hairdressers who were formally not allowed to work in the Netherlands.

Last April, the Council of State overturned a fine of 72.000 euros, convinced by Erik’s argument that the salon did not qualify as the employer of the hairdressers as they had been working as independent contractors.

More positive news came from The Council of State in a ruling deciding that, in performing an inspection under the Employment by Foreign Nationals Act, the Labour Inspectorate had discriminated.

From the case records, it had become apparent that the Inspector had exclusively approached dark-haired, darker skinned employees present at the work location to identify themselves, assuming they were foreign nationals. The Council of State held this was an unlawful distinction based on appearance and contrary to Section One of the Netherlands Constitution.

The statements of these workers could not be used as evidence, as they were unlawfully obtained, and for that reason the Council annulled the penalty imposed on their employer.

Response to the Middle East situation

Moving to the European stage one cannot but hover over the tragic fate of so many boat refugees in the Mediterranean fleeing the widespread civil war and ethnic conflict grounds in the Middle-East.

The efforts of the EU member states to take joint action to alleviate the burden of relief assistance by countries like Italy, Spain and Greece, are positive but modest and, as yet, far from adequate.

Against the grim background of the current geopolitical conflicts in the Arab world, Europe still aims to support and facilitate business travel from the Middle East.

UAE visa waiver agreement

United Arab Emirates citizens can now travel to Europe visa-free for stays up to 90 days within a period of 180 days.

On May 6, 2015 in Brussels, representatives of the European Union and the United Arab Emirates signed a visa waiver agreement to this end, thus waiving the visa requirements for United Arab Emirates nationals in the Schengen countries. Emiratis are the first in the Arabian Gulf who can travel freely to Europe.

Visa waiver for some ACP countries

On May 28, 2015, a EU representative signed a similar visa waiver agreement with certain ACP countries. These countries are:
› St Lucia
› The Commonwealth of Dominica
› Grenada
› St Vincent and the Grenadines
› The Republic of Vanuatu
› The Independent State of Samoa
› The Republic of Trinidad and Tobago

Opportunities for citizens of new EU states

The position of new EU citizens also came into focus this summer. When a European country joins the European Union as a new member state, the existing member states have the right to temporarily suspend free access to their job market. The Netherlands have exercised this right each time a new member state joined.

For example, free market access was suspended to Bulgarians and Romanians, when their countries joined the EU, until July 1, 2014. Last June, the Dutch cabinet decided to continue denying free labour market access to Croatians for yet another three years, until July 1, 2018.

During such transitional periods, new member states’ nationals may work as employees in the Netherlands only if they hold a work permit. However, the Netherlands does not suspend the free movement of services from those new member states.

This means that businesses and private individuals from the new member states may freely provide services in the Netherlands. For example, in the current transitional period for Croatia, a Croatian company may accept an order for construction and come to the Netherlands to execute that order.

Self-employed professionals from Croatia, too, may already work in the Netherlands without a work permit.

Explore opportunities

If you belong to one of the previously-mentioned categories, and you are interested in coming to the Netherlands to work, then it may be worthwhile further exploring your travel and work options.
 

Ted Badoux co-founded Everaert Advocaten in 1982. With over 36 years of experience under his belt, Ted is a senior partner and prominent lawyer in labour migration.