Duty of disclosure for sponsoring employers: a checklist

The sponsor informs the IND if the employment ends or if the employee exits the Netherlands. If the employee starts working for a new employer who takes over the sponsorship on the basis of the same permit, the new employer notifies the takeover of the sponsorship. Taking over sponsorship is only possible for certain residence permits such as the highly skilled migrant permit.
 

A case of 2 companies in the Netherlands within the same group are considered 2 different employers under immigration law. If an employee holding a highly skilled migrant permit is transferred to another company within the same group, duty of disclosure obligations arise for both companies involved. The previous employer must report a cessation of employment; the new employer must report the commencement of employment. The new employer also checks whether the employee still meets the permit requirements. 
 

The same applies to mergers and acquisitions. Whereas from a labour law perspective an employment relationship can pass by operation of law when 2 companies merge, from an immigration law perspective a new employment relationship arises. The new employer reports that it is taking over sponsorship of the permit, sharing the main terms of employment with the IND. Also in this situation, the new employer confirms whether the employee still meets the permit conditions.
 

For most work-related residence permits, there is a salary criterion that must be met to qualify for the permit. This salary must be transferred monthly directly into the employee's bank account. The employer informs the IND if the employee no longer meets the wage criterion, whether temporarily or permanently. The IND can then proceed to revoke the permit if the conditions are no longer met.

When taking statutory leave, such as zorgverlof (carer’s leave) or ouderschapsverlof (parental leave), the IND will not revoke the residence permit if the salary criterion is temporarily not met. In that case, however, the employer must inform the IND in good time about the start and duration of the leave.
 

A change of job or duties may impact the duty of disclosure. It is possible that the activities carried out during employment no longer fall under the restrictions of the permit. The IND may then revoke the permit. Therefore, when offering a new position, an employer should confirm whether the current permit is still appropriate. If not, the employer must apply for an appropriate permit. If the employer applies for a new permit, the obligation to additionally inform the IND about the position lapses, as the IND is already informed about the new position at the time of application.

The IND must be informed in a timely manner in case of a delayed start date. The IND will then take into account the start date of the permit. The start date can only be moved back, not forward; an earlier start date requires a new permit or adjustment of the application if it has not yet been approved.
 

There are more changes that may be relevant. For any change in the employment relationship or circumstances, an employer should check whether this affects the right of residence. If the answer is positive, the change should in principle be reported to the IND. In case of doubt, it is advisable to contact the IND.
 

If a sponsoring employer can no longer fulfil its obligations as a sponsor (duty of care, duty of administration and duty to provide information), the IND must be informed. 

The same applies to a sponsoring employer who employs employees on the basis of an intra-corporate transfer permit and who no longer belongs to the same group of companies.

A sponsoring employer shall notify it when its administration address changes. This is the address where the employer keeps the documents and information on its employees, which it is required to keep on the basis of the administration obligation. This change is subject to a shortened reporting period of 2 weeks instead of 4. 

Recognised sponsors obtain their status after an extensive screening by the IND, and in some cases also by the Rijksdienst voor Ondernemend Nederland, RVO (Netherlands Enterprise Agency). When a recognised sponsor no longer meets the recognition criteria, the status is withdrawn. This happens, for example, in case of bankruptcy or deregistration from the trade register. Similarly, if an approved sponsor, who seconds personnel or does payrolling, loses its SNA registration, this leads to withdrawal of the approval. Such changes must be reported by the authorised sponsor to the IND within 4 weeks.

Finally, there are also some non-obligatory changes for recognised sponsors about which the IND wants to be informed, but for which there is no legal basis. This applies, for example, to a change of contact at the authorised sponsor or change of employer's name in the Handelsregister (Business Register).

The seriousness depends on the nature of the information reported, whether it was reported in time and whether it was still voluntarily reported by the sponsoring employer. If the employer provides the information late but voluntarily to the IND, the IND halves the fine.

There is verminderde ernst (reduced seriousness) if it is established that no immigration law or other advantage such as financial advantage has arisen as a result of the failure to report in time. This is the case, for example, where the sponsoring employer forgot to report that an employee left employment and it is established that the employee in question left the Netherlands at the time of leaving employment. If there is reduced seriousness, the fine can be mitigated to a quarter of the applicable amount.

Verhoogde ernst (increased severity) applies in any case where incorrect information is provided or information is withheld that would lead to revocation of the employee's residence permit or the employer's recognised status. When the employer can no longer fulfil its duty of care and does not report this to the IND, the IND also assumes increased seriousness. With increased seriousness, the IND does not apply a reduction of the fine.
 

The IND can assume reduced culpability if the information has not been reported (on time) despite adequate measures put in place by the employer to comply with the obligation to provide information. In doing so, the IND will also take into account whether the employer has generally complied with its duty of disclosure for other employees. The IND will therefore take into account whether the failure to report is a mistake or systematic failure to report. In case of reduced culpability, the fine will be (further) reduced to a quarter of the applicable amount.
 

For sponsoring employers who are recognised sponsors, withdrawal of recognised sponsor status may follow after 3 fines. This can happen after the sponsoring employer has been fined 3 times for failing to comply with the duty of disclosure or duty of care, with the offence qualifying as serious.