Highly skilled migrant: the importance of immigration compliance

In 2024, the IND issued 19670 highly skilled migrant (“arbeid als kennismigrant”) permits. Meanwhile, in the same year, the IND revoked 3840 highly skilled migrant permits. These statistics demonstrate the importance of immigration compliance. The reason as to why the highly skilled migrant permit is quite susceptible to curtailment can be explained by the nature of the permit. The highly skilled migrant permit entails a plethora of requirements, which must be met continuously. For example, a highly skilled migrant must work for a recognised sponsor. The case law shows that such a simple requirement can be problematic.

The US technology company case

A famous US technology multinational (hereafter: Technology) had a subsidiary in the Netherlands, namely, [Technology] Nederland B.V. In January 2015, due to administrative reasons, [Technology] decided to set up a new company, [Technology] International Group B.V. The new company is a sister company of [Technology] Nederland B.V. At that time, [Technology] Nederland B.V. was a recognized sponsor, and it employed, at least, 1 highly skilled migrant. This highly skilled migrant was told by her supervisor that, as of 15 January 2015, she would be officially employed by [Technology] International Group B.V. The substance of her employment contract remained the same. She continued to work at the same location, and the nature of her job remained intact. She also had the same manager. Nevertheless, this administrative change turned out to be a poisoned chalice. At that time, [Technology] International Group B.V. was not a recognised sponsor. This administrative alteration came to the attention of the IND. By decision of 18 February 2016, the IND decided to revoke this highly skilled migrant’s permit reactively, as of 15 January 2015. This case was litigated all the way up to the Dutch Council of State (“Raad van State”). By its opinion of 18 January 2018, the Council of State upheld the IND revocation decision. The Council of State holds that [Technology] International Group B.V. was not a recongised sponsor as referred to in article 2c of the Immigration Act 2000. Neither has the employee been working for a holding company as referred to in the IND Work Instruction. Therefore, the IND argued correctly that the highly skilled migrant did not fulfil the conditions of her visa at that time.

Incorrect application of the 30 ruling

As many expats and HR people know, 30% ruling is a tax facility, with a view to recruiting highly talented people to work in the Netherlands. In general, it means that up to 30% of a highly skilled migrant’s gross salary can be exempted from the salary income tax in the Netherlands. Nevertheless, when it comes to maths, some tax advisors and employers tend to be creative. Thus, there had been two schools of thought on the calculation method. The majority opinion is that a highly migrant’s gross salary needs to be high enough, and that up to 30% of their gross salary can be exempted from the salary income tax. However, according to the minority opinion, the 30% ruling could be calculated in a reverse order, on the basis of an equal amount of net salary, as a corollary of which the gross salary turned out to be, in some cases, lower than the required salary threshold. In March 2025, the IND published an information notice, in which the IND stipulates that the minority opinion is incorrect, and that the affected highly skilled migrants and their employers have not been in compliance with the conditions of the highly skilled migrant visa.

Sick leave and sick pay

Sick leave and sick pay can be a bone of contention. Whilst many Dutch companies continue paying 100% of a sick employee’s salary during the first 12 months of their sickness, some companies try to tighten their belts through paying less during sick leave. The latter is legally possible, as the statutory sick pay can be as low as 70% of the contractually agreed salary. Nevertheless, it happens sometimes, when a company pays much attention to the regular employment law (such as, the Civil Code), the applicable collective labour agreement ("cao") and their employment handbook, they lose sight of the nitty-gritty of the Foreigner Employment Act (eg. the salary threshold of a highly skilled migrant). As a result, there can be a breach of the Foreigner Employment Act.

Unpaid leave, additionally purchased holidays and study leave

It happens sometimes that a highly skilled migrant decides to take unpaid leave and/or purchase additional holidays. This can be because of a myriad of reasons (eg. getting married). As a corollary, depending on their salary amount and the length of their unpaid leave, their gross salary can drop below the required threshold.

Also, some companies require their staff members to constantly hone their skills through taking so-called study leave. It happens sometimes that an employee receives lower pay during their study leave, which can lead to a breach of the highly skilled migrant policy too.

Timely and non-cash payment of salary

Since 1 January 2014, it has been required that a highly skilled migrant must receive their salary every month in a timely fashion. Also, a salary must be paid by bank transfer. It happens sometimes that, due to whatever reason, a company does not pay the highly skilled migrant salary in a timely fashion, which is a contravention of the Foreigner Employment Act.

Other compliance issues

Besides the aforementioned issues, there can be other compliance risks. For example, a residence permit holder needs to have their main residence in the Netherlands. It happens sometimes that a highly skilled migrant and their recognised sponsor misinterpret the relevant provisions of the IND Policy. Moreover, sometimes, a highly skilled migrant overlooks the importance of sustaining a city hall BRP address, which can become a point of contention when they want to ask for naturalisation in future.

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