Highly skilled migrant paid below salary threshold: Council of State stresses sponsor’s responsibility

An administrative payroll error does not automatically relieve a recognised sponsor of its immigration compliance responsibilities. This was once again made clear by the Dutch Council of State in its judgment of 30 September 2026 (Dutch).

What happened?

The case concerned a company acting as recognised sponsor for a highly skilled migrant. An investigation by the IND and Labour Inspection found that the highly skilled migrant had been underpaid during a period from June 2017 until February 2021. The company had also failed to inform the IND in time that the salary criterion was no longer being met.

The company argued, among other things, that the underpayment resulted from an obvious administrative error by its accountant and that it reported the error once it became aware of it. It therefore argued that the violation should be considered less culpable. The Council of State disagreed.

Recognised sponsors must take appropriate measures

The Council of State considered it relevant that the company had been a recognised sponsor since 2013 and had been informed of its obligations. In determining the fine, the authorities could take into account that the company had not put sufficient measures in place to prevent a breach of its reporting obligation. The employer was also legally responsible for the correct payment of the employee’s salary.

The company’s later notification did not result in a further reduction of the fine either. By then, the authorities had already approached the company as part of an enforcement investigation and requested, among other things, access to its payroll administration. The information had therefore not been provided voluntarily within the meaning of the applicable penalty policy.

Two separate obligations

The judgment also illustrates that underpayment can have consequences under different statutory regimes. In addition to the fine for breaching the reporting obligation under the Aliens Act 2000, a fine had been imposed under the Foreign Nationals Employment Act.

The Council of State regarded these as separate violations. The latter fine concerned employing the highly skilled migrant without paying the required salary, while the immigration fine concerned failure to report information that could affect the migrant’s residence status and the employer’s position as sponsor. Both violations could therefore be sanctioned separately.

Key takeaway for recognised sponsors

The judgment highlights the importance of effective internal controls over the payroll of highly skilled migrants. An error made by an accountant or payroll provider does not automatically remove the recognised sponsor’s own responsibility.

Recognised sponsors must also report relevant changes in time. Article 4.23 of the Aliens Regulations 2000 specifically covers the situation in which a highly skilled migrant no longer meets the salary criterion. Pursuant to Article 4.17, the relevant information must in principle be provided within four weeks.

Employers of highly skilled migrants should therefore monitor compliance with the applicable salary threshold not only at the application stage, but throughout the entire employment relationship.