Court: Highly skilled migrant receives salary from a non-IND recognized sponsor – IND has wrongly withdrawn the HSM permit
Jelle Kroes has won an important decision in which the court ruled that the IND wrongly withdrew the residence permit of a highly skilled migrant, resulting in a residence gap.
What was going on? The foreign national had been given a residence permit as a highly skilled migrant. This permit was granted on the basis of an employment contract with an IND recognized sponsor employer. The salary of the highly skilled migrant however was being paid by another company within the group of companies to which the IND recognized sponsor employer also belonged.
This is not permitted under the highly skilled migrant scheme. The salary must be paid by the IND recognized sponsor. The IND withdraw the residence permit on this basis. The IND stated before court that if this will be allowed – the salary payment by a company other than the IND recognized sponsor employer – the highly skilled migrant scheme becomes a shortcut for employers to circumvent the ‘normal’ GVVA procedure.
Jelle Kroes argues that the withdrawal of the residence permit in this partcular case is not proportionate. The highly skilled migrant is already working for another employer, and the payment structure was chosen by the employer, not the highly skilled migrant. In addition, the foreign national reported to his employer whether this construction was allowed under the highly skilled migrant scheme. Jelle Kroes argued that the withdrawal of the residence permit and the creation of a ‘residence gap’ are now entirely at the expense of the highly skilled migrant.
The court ruled in favor of the highly skilled migrant and ruled that the court does not follow the reason (‘purpose’) of the withdrawal. The IND was therefore not allowed to withdraw the residence permit.
No high appeal has been lodged by the IND against the decision of the district court. The residence permit of the highly skilled migrant and his wife have not been withdrawn.