Modern Migration Policy Act to take effect on June 1, 2013
Publication date 23 April 2013
The long-awaited Modern Migration Policy Act (MMPA) is to finally take effect on June 1, 2013. The introduction of the MMPA will mainly affect the role and status of employers, as they will now become an official sponsor in immigration procedures. The MMPA will also simplify the residence permit application procedures.
Now that the entry procedure for the Netherlands has been simplified, the government will monitor the compliance of the rules and its enforcement more closely. If the employer fails to follow the rules, sanctions will be imposed. These sanctions could result in employers being excluded from accelerated procedures, such as the highly skilled migrant procedure.
The status of the sponsor
An individual, who has an interest in an immigrant coming to the Netherlands, can act as sponsor in the immigration procedure. Under the MMPA, employers will become the legal sponsor of their labor migrants and can request a residence permit for them.
A distinction is made between private and business sponsors. Business sponsors can request an authorized sponsor status. When the MMPA takes effect, only authorized sponsors will be able to apply for the highly skilled migrant procedure.
On June 1, 2013, when the MMPA takes effect, businesses with a current registration for the highly skilled migrant procedure will automatically be given the status of authorized sponsor, if they successfully completed at least one highly skilled migrant procedure between June 1, 2012, and June 1, 2013.
Businesses that are not automatically given the status of authorized sponsor after the MMPA has taken effect, can submit a request for this status to the Immigration and Naturalization Service (Immigratie- en Naturalisatiedienst; IND).
At the moment, the registration for the highly skilled migrant procedure is free of charge, but the IND will charge EUR 5,000 for the sponsor authorization. However, this authorization will, in principle, apply indefinitely.
The authorization is subject to conditions: the business must be registered in the Dutch Trade Register and it must be able to prove that it is a trustworthy business. This refers to the business continuity and solvency; the background of the managers and/or legal entity will also be checked. The IND will keep a public register of all the authorized sponsors.
Rights and obligations
An employer acting as sponsor will therefore be entitled to request a residence permit; the decision on the residence permit is open to objection and appeal. The authorized sponsor can also make use of an accelerated procedure, under which the request can be submitted without the underlying documentation. In those cases, the sponsor only needs to state that the immigrant meets the conditions for residence (sponsor statement). In future, the information will be checked after the fact.
The sponsor has the following obligations:
1. Information obligation. There will be an obligation to report any interim changes that could affect the immigrants residence status and also any relevant changes in the sponsors status. For example, changes to its registration in the Trade Register.
2. Administration obligation and obligation to retain records. The sponsor must include certain relevant information regarding the immigrant in its records and retain these records for five years after the sponsorship was terminated. For example, income details, contracts and work permits.
3. Duty of care. The sponsor must inform the immigrant of the relevant legislation with regard to their stay in the Netherlands.
One procedure for entry and residence
In order to simplify immigration procedures, the MMPA includes a combined procedure for the special entry visa, the temporary residence permit (MVV visa) and the residence permit. This means there is only one procedure for entry and residence (the TEV procedure).
Migrants who do not have an MVV visa obligation, will, under the new legislation, need to request a residence permit before they travel to the Netherlands. After arrival in the Netherlands, they will only need to pick up the residence permit at an IND office.
Burden of proof lessened and the sponsor statement
Authorized sponsors indicate with their sponsor statement that the labor migrant or highly skilled migrant meets the conditions for the residence; the statement also lists the migrants salary, duration of the contract etc. The IND will accept the statement as being correct and does not need to receive any supporting documentation, such as contracts and educational qualifications.
Permits valid longer
Many permits will be valid for a longer period. Residence permits will be issued for the expected duration of the stay and therefore, in many cases, requests for an extension will be unnecessary.
It has also been made easier for migrants to change employers or educational institutions without having to request a new residence permit.
For highly skilled migrants, the target period of two weeks for an IND decision on a request will remain unchanged. For other labor migrants, a slightly extended period of seven to eight weeks will apply. This includes the request for the residence permit.
Compliance and sanctions
Now that the entry procedures have been simplified and the sponsor is in a stronger position, more emphasis will be placed on monitoring after the fact and compliance. The IND has announced that it will verify the following:
· Does the migrant meet the conditions for the issued residence permit?
· Does the authorized sponsor meet the conditions for authorization?
· Does the authorized sponsor meet its obligations?
The IND will primarily request documentation after the fact and examine it thoroughly. If it becomes clear that the obligations are not being met, then sanctions can be imposed. In general, a first warning is given. In the event of a second violation, or a serious first violation, an administrative penalty of EUR 3,000 for each violation will be imposed on the employer. In the event of a repeated offense, the penalty will be increased to EUR 4,500.
The IND can also decide to go back to fully assessing residence permit requests instead of relying on the sponsor statement. It will also be possible to suspend the authorization temporarily (three months) if further investigation into the reliability of the employer is necessary.
The authorization can also be completely withdrawn. This will be done if the authorization is granted on the basis of incorrect information or if the employer no longer meets the conditions thereof. The IND can also withdraw the authorization if the employer repeatedly fails to meet its obligations. New authorization requests can be rejected for a period of up to five years after the employers authorization has been withdrawn. This also means that the employer will no longer be eligible for the accelerated procedure. The withdrawal can also have consequences for the migrant as their residence permit may be withdrawn. Only if the migrant has acted in good faith, will they be granted a three-month period to find a new sponsor.
The IND is currently working on the last preparations for the introduction of the MMPA, which includes a more detailed plan for implementing the procedures in practice. In the coming weeks, the IND will send a confirmation letter to all businesses who have registered for the highly skilled migrant procedure.