Will unemployment affect my residency?

Everaert Advocaten is a respected leader in Dutch immigration law. Based in Amsterdam, its multilingual team advises expats on residency, citizenship and immigration-related legal issues.

Whether unemployment will affect your residency depends on many factors. I wrote this article with the aim to allow you to determine for yourself if unemployment will jeopardise your right of residence.

Are you from the EU, the EEA or Switzerland?

If you’re from the EU, the EEA or Switzerland, unemployment will, in itself, not affect your residency. You are, in any case, considered to have retained your right of residence as an EU-worker if you:

1. Are actively looking for work and have a realistic chance of finding work.
2. Are involuntarily unemployed after having been employed for more than one year and have registered as a jobseeker with UWV.
3. Are involuntarily unemployed after completing a fixed-term employment contract of less than a year and have registered as a jobseeker with UWV.
4. Became involuntarily unemployed during the first 12 months of residency and have registered as a jobseeker with UWV.
5. If you embark on vocational training. If your employment is voluntary, the training must be related to your previous employment.

Under 3 and 4, you are considered to have retained your right of residence for at least six months.

If you do not qualify under these rules, you are still considered to have retained your right of residence if you can demonstrate that you have sufficient financial means to support yourself and your family, as well as valid health insurance. Whether you have sufficient financial means depends on your personal circumstances. If your means are at the level of social assistance, they are deemed sufficient. An unemployment benefit provides relevant income in this respect.

Are you sponsored?

If you are not sponsored, unemployment will, in itself, not affect your residency. Examples of non-sponsored permits are: permanent residence, (non-) temporary humanitarian status, asylum status, orientation year, WHP / WHS. However, your residency may be terminated if you depend on social assistance. An unemployment benefit does not qualify as social assistance.

You are sponsored. Who is your sponsor?

If you are sponsored by someone other than your employer, unemployment will not necessarily jeopardise your immigration status (e.g. if you are sponsored by your spouse). However, if you are sponsored by your employer, it will, as this sponsorship is the basis for your residency.

Are you sponsored under the HSMP, EBC or GVVA?

If you are sponsored under the highly-skilled migrant programme (HSMP) or if you hold a European Blue Card (EBC) or combined permit for residence and work (GVVA), your residence permit can be revoked, however, you will be entitled to a search period i.e. a period to find a new job within your immigration category.

This period lasts three months, counting from the date of termination of your employment. You are only entitled to this search period if your residence permit is still valid for at least three months from the termination date.

How does this work? Your employer is required to notify the IND within 28 days when your employment is terminated. The IND will then wait to see if a new employer has notified them that they have hired you. If so, your residence permit will not be revoked. If not, your residence permit will be revoked. The revocation will take effect on the termination date of your employment.

If you are sponsored under another programme, e.g. ICT, you will not have a search period and you must anticipate that your residence permit will be revoked. However, if you find a new job and your employer is able to sponsor you, they can. This may require an application to have your residence permit converted to another category.

Only if the new employment and sponsorship start at the termination of your current employment, will you be able to prevent acquiring a residence gap. This can be complicated if you need to observe a relationship or competition clause and it is recommended to seek advice on this from an employment attorney as well as an immigration attorney if you are in a position where you can negotiate the terms of your termination.

Graduates

Graduates from a Dutch university or a listed foreign university who qualify for an orientation year but have yet to utilise this (e.g. because they found a job right after graduation and were able to have their study permit converted to an HSMP) may be able to convert their residence permit to an orientation year, allowing them 12 months to search for work. The orientation year can be utilised within 3 years of graduation.

Garden leave

The above-mentioned rules also apply if you agree on garden leave. In that case, the search period will start at the date of termination of employment as well, i.e. when the garden leave ends. Please note this does not apply to the 30% ruling (see below).

30% ruling

If you hold a 30% ruling with your current employer and wish to have this transferred to your new employer, you and your new employer will need to make an application with the Tax Service. You will need to demonstrate that you still meet the conditions regarding specific skills and that you started your new job within three months of terminating the previous one.

Please note that these three months do not commence on the termination date of the employment contract, but on the last day of work. If you agree on a garden leave, the three months will commence at the start - and not the end - of the garden leave.

Can I continue in my own company?

If you are sponsored under the HSMP, EBC or ICT, you are allowed to work as a self-employed person in your own company as a subsidiary activity, provided you continue to meet all the requirements for your sponsored residence permit. If you become unemployed and wish to continue as a self-employed person exclusively, you will need to convert your residence permit to the immigration category of self-employment.

Applications for self-employment are tested against a points-system, however, certain categories of persons are exempt from the points-system, e.g. citizens of the US, Japan and Turkey and those filing under the start-up visa programme.

Do you want to know more about how unemployment can affect your right of residence? Don't hesitate to contact Marcel Reurs of Everaert Advocaten.