On 29 November, Dutch migration laws will change with the introduction of a new Intra-Corporate Transfer (“ICT”) system. Multinationals located outside the EU can obtain residence permits for their employees who are transferred to an entity of the same company within the EU.
The Dutch ICT rules are the implementation of EU Directive 2014/66/EU, and with the implementation of this directive, the Highly Skilled Migrant system will see some major changes.
What is an Intra-Corporate Transfer?
Companies based outside the EU can apply for an ICT-permit for employees who are temporarily posted to a group entity within the EU. Eligible for an ICT-permit are managers, specialists and trainees.
What will the new Intra-Corporate Transfer system look like?
The new Intra-Corporate Transfer regulations provide companies with more flexibility with respect to intra-EU mobility. Other noteworthy changes include:
- The ICT-regulations apply to intra-corporate transfers of employees who remain employed by the non-EU entity and have an employment history with said entity of at least three months before starting the assignment in the Netherlands;
- The ICT-permit has a maximum validity of three years and cannot be extended after this period;
- The employee and its family members are exempted from the civic integration exam and family members have work authorization;
- The salary of the employee should be in conformity with the market. There are no fixed salary standards, but the existing salary thresholds for Highly Skilled Migrants will be used as indicator;
- A cooling-off period of six months applies to transferees who require a consecutive posting to the Netherlands as an Intra-Company Transferee;
- The ICT-permit has a temporary nature, which means that accrued years of residency on the basis of an ICT-permit do not qualify as years for a permanent EU residence permit.
Highly Skilled Migrant permit versus ICT permit
A major change to the existing rules is that a Highly Skilled Migrant (HSM) application will be rejected if the application falls within the scope of the ICT Directive. In that situation, the applicant will either receive an ICT permit if all conditions are met, or the application will be rejected all together. It is not possible to choose between the two permits!
The ICT permit has the advantage that it is relatively easy to transfer an employee from one EU member state to another, provided that the work is performed within the same company or group (intra-company). A Highly Skilled Migrant permit only provides the employee with the right to work in the Netherlands. Furthermore, ICT-regulations do not require the receiving company to hold ‘recognised sponsor status’ unlike the HSM regulations.
The Highly Skilled Migrant permit has the advantage that it is granted for a period of maximum five years, compared to three on an ICT-permit, and it can even be extended. The ICT permit cannot be extended without taking into account a cooling-off period of six months. Years of residency as an ICT-permit holder do not qualify as relevant years for a permanent EU residence permit, while years of residency as a Highly Skilled Migrant do qualify.
Postings of employees who are placed on a local Dutch employment contract do not fall under the scope of the ICT Directive and therefore may still qualify for a Highly Skilled Migrant permit.
Applications for Highly Skilled Migrant permits filed before 29 November 2016 will be handled as per the most favourable rules (HSM or ICT). Where appropriate the Dutch Immigration Services will contact applicants in order to liaise about what is most favourable in the specific situation. We advise you to pro-actively contact the Dutch Immigration Authorities to state your preference.