Important update for Turkish highly skilled migrants: new IND procedure for changing employers

Foreign nationals with a highly skilled migrant permit are only allowed to work for a recognised sponsor.

However, there is a special exception to this rule for Turkish highly skilled migrants. Under the Association Agreement between the EU and Turkey, Turkish highly skilled migrants are also allowed to work for a regular employer, that is not recognised by the IND as recognised sponsor.

Turkish highly skilled migrants are therefore also permitted to work for a non-recognised sponsor, provided they earn a market level salary above the applicable salary threshold for highly skilled migrants.

No longer allowed to work during notification procedure

When a highly skilled migrant with a valid permit switches to a new employer, this new employer must notify this to the IND.  Until recently, the standardised confirmation of receipt letter from the IND contained the standard text stating that,

• as long as the permit is still valid,
• and the new employer and employee meet the conditions of the permit,
• the highly skilled migrant may start working for the new employer until the IND has decided on the notification.

Since last summer, however, the IND has added to the standard text that Turkish highly skilled migrants who have started working for a company that is not approved as IND recognised sponsor, are no longer allowed to work while awaiting the processing of the notification changing employers.

Conflict with Association Agreement between the EU and Turkey

In practice, this discourages Turkish highly skilled migrants from working for a company that is not a IND recognised sponsor. This is especially true because the processing of the notification to change employers, can often take months, and sometimes even more than a year.

This means that employer that is not an IND recognised employer and the Turkish highly skilled migrant are given no certainty at all, as to when the highly skilled migrant can start working for the new employer and may therefore be without work and income for months. As a result, the permit itself may also expire.

According to Kroes Advocaten, this approach is contrary to the Association Agreement between the EU and Turkey, because the new approach effectively restricts the Turkish highly skilled migrant’s choice of a non-recognised sponsor as an employer.

Moreover, this new IND practise appears to have no legal basis. The Dutch Foreign Nationals Employment Act (Wet arbeid Vreemdelingen), which regulates when foreign workers are allowed to work in the Netherlands, stipulates that employees in possession of a valid highly skilled migrant permit are allowed to work in the Netherlands, provided that the conditions (such as salary) are met. There is no provision stating that the right to work ceases when the IND is processing a notification by a non-recognised sponsor.

What now?

We have brought this explanation to the attention of the IND in individual cases, but have not yet received a substantive response. It is important to note that, from a legal perspective, a notification from the new employer is not an application within the meaning of the General Administrative Law Act (Awb), but merely a (mandatory) notification to the IND of a change in the factual situation.

This means that the IND’s confirmation of receipt, as well as the final “decision” on the notification, are not decisions within the meaning of the Awb, and therefore have no legal consequences. The IND itself confirms this by not allowing any objections or appeals against decisions on notifications, but only stating whether or not the information is accepted, without attaching any clear consequences to this.

The IND must therefore stop this practice as soon as possible.

Do you have any questions or problems with this?

Are you a Turkish highly skilled migrant or an employer of a Turkish highly skilled migrant and are you experiencing problems due to this new working method of the IND? Please feel free to contact us so that we can advise you on this matter.