With the Intra-Corporate Transferee directive, in brief ICT Directive, it will become easier for multinationals to transfer managers, specialists and trainee employees temporarily from third countries to a branch or subsidiary into and within the EU. The ICT Directive aims to facilitate mobility within the EU and to harmonise the rules and the procedure for intra-corporate transferees. All EU Member states are required to implement this directive into their national legislation by 29 November 2016. The ICT Directive takes precedence over national legislation meaning there will be no choice. If the ICT Directive is applicable, the knowledge migrant permit or ‘single permit’ (GVVA) is not possible.
What are the changes?
Managers and specialists on assignment can get an ICT permit for up to 3 years and trainees for up to 1 year. At this time, this group largely was considered to fall under the knowledge migrant scheme.
The new regulation does not impact local hires or assignees who are currently working in The Netherlands and who are in the possession of a knowledge migrant permit issued before 29 November 2016. Also, assignees coming from outside the EU to the Netherlands for a maximum period of 3 months, can still apply for the Short Term Knowledge Migrant permit (STWP).
The ICT Directive distinguishes 2 categories:
- Intra-corporate transferee (ICT) permit (from 90 days – 3 years);
- Mobile ICT (for up to 90 days).
1. Intra-corporate transferee (ICT) permit (from 90 days – 3 years)
Basic and most important requirements for the ICT Permit:
- assignee is at least 3 months employed by the parent company before the intended start date in The Netherlands;
- assignee is in the possession of a valid employment- or trainee agreement/assignment letter with the parent company;
- the gross salary is equal to knowledge migrant thresholds or similar to Dutch persons in same position;
- assignee must have main residence outside the EU Member State where he wishes to be admitted at the time of application;
- managers and specialist require at least a bachelor’s or a master’s degree or five years working experience at that level or recognition of qualifications for regulated professions;
- trainees require a master’s degree.
Extensions are allowed but cannot exceed the maximum allowable duration of the permits. A new permit can be applied for yet an EU ICT permit holder must leave the Netherlands/the EU for six months before applying for a new EU ICT Permit.
Assignees who are in the possession of an ICT permit and are required to work in a 2nd EU member state for longer than 90 days can apply for a 2nd ICT permit whilst keeping the ICT permit in the 1st EU member state.
2. Mobile ICT:
Is intended for a stay of up to 90 days within a period of 180 days. The assignee has a valid ICT permit in an EU Member State. The Dutch entity has to submit a notification to the UWV (Dutch Employment authority) with details on the temporary assignment and work location. After submission of the notification the assignee is allowed to start working immediately.
The ICT Directive has benefits especially for multinational companies to transfer foreign employees to an EU member state for a temporary assignment or within the EU. The ICT permit can be applied by recognised and non-recognised sponsors. The IND aims to make an advise within 2 weeks however for non-recognised sponsors the procedure may take up to 90 days.
Implications of the directive for employers and employees
Employers should ensure they check the previous residence permit(s) and earlier stays of the assignees in order to determine the correct immigration category. The Directive has an immediate impact on the business planning: should the assignment take longer than 3 years the employer has to transfer the assignee to a local contract with the Dutch entity and apply for a new residence permit for example under the Knowledge Migrant scheme. The Directive provides the need for increased mobilisation and harmonisation in ICT permits. For the employee it has no direct advantage rather a limitation: with the ICT permit he cannot build up any residence rights. This confirms the temporary nature of permits in the ICT Directive once again!