International mobility of workers requires effective immigration solutions. In a globalizing world, corporate immigration is on the rise.
Traditionally immigration is a theme that many want to regulate on a national basis, but in fact national sovereignty over this topic has been partially abandoned in favour of the gradual establishment of an area of freedom, security and justice in the European Union (EU). As a result, national immigration policies, though still existent, are being gradually replaced by policies based on EU-law. Recent examples of such immigration policies are the implementation of the EU-Blue Card Directive1 and the Single Permit Directive2.
Implementation of these EU immigration policies on a national level to a certain extent results in a harmonised structure of migration policies throughout the EU. However, the effective use of EU policies on a national level varies a lot.
In the Netherlands the EU-Blue Card policy is hardly a success mainly due to the existence of more favourable and effective national policies such as the Dutch ‘Highly Skilled Migrant Programme’, which is a very popular programme that is used to allow third country nationals (non-EU) to reside and work in the Netherlands.
The Highly Skilled Migrant (HSM) Programme contains less restrictive access conditions then the Blue Card policy and hence the Blue Card policy is rarely used in the Netherlands. In 2015, only 20 Blue Card permits were issued in the Netherlands compared to 7909 HSM permits. In comparison, the introduction of the Blue Card in Germany has led to a successful programme. In Germany 14620 permits were issued in 2015 against 11 permits on the basis of comparable national policies. The Blue Card’s success in Germany is explained by the lack of a more favourable policy for skilled labour3. Large differences in the use of the Blue Card on national levels resulted in little effectiveness of the directive.
On 7 June 2016, the European Commission proposed further harmonisation on the conditions of entry and residence of third-country nationals for the purposes of highly skilled employment in order to solve the inefficiency of the current Blue Card4. The new policy intents to have exclusive effect that prevents the member states from allowing parallel regulations such as the Dutch programme for highly skilled migrants. The initial response from member states is not too positive. The Netherlands has announced that it wants to maintain the current HSM programme due to its effectiveness and flexibility. Considering the response it remains uncertain if the purpose of harmonisation will be achieved by this proposal.
INTRA CORPORATE TRANSFEREES
To achieve harmonisation of immigration policies between member states, exclusivity of policies proves to be a good instrument. With the introduction of the ‘ICT-Directive’ DIRECTIVE 2014/66/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer. The EU has taken a step further in implementing a policy to increase the competitiveness of the labour market.
The European Parliament and the Council of the European Union consider that as a result of the globalisation of business, increasing trade and the growth and spread of multinational groups, in recent years movements of managers, specialists and trainee employees of branches and subsidiaries of multinationals, temporarily relocated for short assignments to other units of the company, have gained momentum.
Such intra-corporate transfers of key personnel result in new skills and knowledge, innovation and enhanced economic opportunities for the host entities, thus advancing the knowledge-based economy in the EU while fostering investment flows across the EU. Intra-corporate transfers from third countries also have the potential to facilitate intra-corporate transfers from the EU to third-country companies and to put the EU in a stronger position in its relationship with international partners. Facilitation of intra-corporate transfers enables multinational groups to tap their human resources best.
The ICT-Directive aims to establish a transparent and simplified procedure for admission of intra-corporate transferees, based on common definitions and harmonised criteria. Compared with previously implemented directives such as the Blue Card, the ICT-Directive has a mandatory applicability if the if the international transfer of personnel falls under the scope of the directive. As a consequence there is no room for member states to apply local policies that promotes further harmonisation.
INTRA-EU MOBILITY
The ICT-Directive promotes intra-EU mobility by allowing the holder of a valid intra-corporate transferee permit issued by one member state to enter, to stay and to work in one or more other member states. Short-term should cover stays in member states other than the one that issued the intra-corporate transferee permit, for a period of up to 90 days per member state. Long-term mobility regards stay longer than the aforementioned 90 days.
CONDITIONS OF EMPLOYMENT
Intra-corporate transferees should benefit from at least the same terms and conditions of employment as posted workers whose employer is established on the territory of the EU. Similar to conditions set as defined by the Posted Workers Directive, which concerns the posting of workers intra-EU5, social dumping is prevented by creating a level playing field with respect to remuneration during the transfer.
ICT DIRECTIVE IMPLEMENTATION IN THE NETHERLANDS As per 29 November 2016, the ICT-Directive is implemented in Dutch national laws. As a consequence, companies based outside the EU can apply for an Intra-Corporate Transfer permit (ICT permit) for employees who are temporarily posted to a group entity within the EU. The regulations apply to the transfers of managers, specialists or trainees and hold the following characteristics:
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 Netherlands has opted for a shortest possible period of employment history to allow maximum use of the regulations.
The ICT-permit has a maximum validity of three years and cannot be extended after this period. After the three years have lapsed, the Netherlands currently provides for a continuation of the assignment on the basis of national legislation.
In order to promote families to join workers on assignments, the employee and its family members are exempted from the requirement to pass a civic integration exam and family members have work authorisation. The salary of the employee should be in conformity with the market conditions. There are no fixed salary standards, but the existing salary thresholds for Highly Skilled Migrants will be used as indicator6.
A cooling-off period of six months applies to transferees who require a consecutive posting to the Netherlands as an Intra-Company Transferee after they have been posted on an assignment before.
The ICT-permit has a temporary nature, which means that accrued years of residency on the basis of an ICT-permit do not qualify for calculation of relevant years to obtain a long term EU residence permit. Dutch national laws provide for a national permanent residence permit though, which does take into account accrued years of residency on the ICT-permit.
HIGHLY SKILLED MIGRANT PERMIT VERSUS ICT PERMIT
The ICT-Directive works exclusively and as a consequence it is not possible to successfully apply for a Highly Skilled Migrant permit (HSM permit) when the application falls within the scope of the ICT Directive: there is no element of choice here. The applicant whose situation falls within the scope of the ICT Directive will either receive an ICT permit if all conditions are met, or the application will be rejected all together.
Both types of permits have their advantages and disadvantages. The ICT permit makes it easier to transfer an employee within the EU, but it cannot be extended after three years. The HSM permit does not provide its holder with EU mobility rights, but it can be extended after three years and its holder can build up rights in the Netherlands. 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.
CONCLUSION
EU law continues to promote further harmonisation of labour migration policies on a national (member state) level. Mostly due to compromises to the original purpose of the directives, some policies, in particular the EU Blue Card, hardly achieve the original goals. Due to the exclusivity of the applicability of the ICT-Directive, its implementation has drastically changed the international mobility practice of multinational companies in the Netherlands. At the same time, the ICT-permit has not received a very warm welcome. There are undeniably benefits to harmonisation of rules within the EU and to the possibilities for intra-EU mobility, but on a national level, the ICT-permit is less attractive to transferred employees considering the limitation in the duration to three years, and the fact that long term EU residency require.
Notes
1. COUNCIL DIRECTIVE 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment
2. DIRECTIVE 2011/98/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State
3. European Parliament, ‘Briefing Revision of the Blue Card Directive’ May 2017
4. COM (2016) 378: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the conditions of entry and residence of third-country nationals for the purposes of highly skilled employment
5. Directive 96/71/EC of the European Parliament and of the Council, concerning the posting of workers in the framework of the provision of services
6. 2017 thresholds: Highly skilled migrant aged 30 years and up: € 4,324; migrants younger than 30 years: € 3,170; migrants who recently graduated or who hold a search year permit in the Netherlands € 2,272
About the Author
Reinier Wolters is an attorney at law at Valegis Advocaten and an expert in employment and labour migration law. He serves an international client base and advises companies with respect to international mobility of their personnel.