Oftentimes, a residence permit is issued after a work permit in the Netherlands, which can cause difficulties later. Nico van Dijk of Loyens & Loeff explains.

In article 11 of the Aliens Employment Act (Wet Arbeid Vreemdelingen, known as WAV) it has been determined that, in principle, a work permit is granted for the period during which an employee is to carry out his work – up to a maximum of three years.

If a work permit is requested or granted for a shorter period of time, then – if the employee wishes to stay in the Netherlands for a longer period of time – an entirely new request will have to be submitted.

This means, among other things, that – where necessary – all the requirements of the WAV will have to be met again. This includes the expensive and time-consuming process of attempting to recruit a candidate on the EU/EEA-labour market. Due to these complications, it is tempting to simply request a work permit for the entire period of three years.

Once three years have passed, the employee does not have to request a new work permit – either for the existing employer or a new employer – on the condition that his residence permit bears a sticker or notation stating “labour freely permitted” (“arbeid is vrij toegestaan”). This sticker is granted to any alien who has enjoyed a residence permit linked to a work permit (a “residence permit allowing labour”) for a period of three years.

In the ideal case, both the terms of validity for the residence permit and the work permit run parallel.

Unfortunately, however, this is seldom the case. This is due to the request procedures and in particular the duration of the processing terms with the various authorities. Here is an example that illustrates the problem.

A Brazilian employee is sent to work in the Netherlands by means of an inter-company transfer. Due to the requirements of the Aliens Employment Act (WAV) and the Aliens Act VW), the requests for the work permit, the authorization temporary stay (MVV) and the residence permit are submitted simultaneously.

The Center for Work and Income (CWI) manages to process the request within the legal term of five weeks and issues the work permit as of 1 January 2002 for a period of three years.

The procedure for the issuance of the MVV and the residence permit lasts a couple of months, so that the residence permit enters into force long after the work permit did.

Consequently, the residence permit is granted from 1 May 2002, until 31 December 2004 (when the term of the work permit ends). This means that the employee has a work permit for the maximum period of three years, but that, come 31 December 2004, he does not qualify for the notation “labour freely permitted” on his residence permit, as he was only “legally” in the Netherlands as of the date of the issuance of the residence permit – being 1 May 2002.

Apparently, a residence permit cannot be issued as of a moment in the past. In order not to let the employer and the employee be the victim of this unusual outcome of the co-application of the WAV and the VW, the employer – at the end of the three year-period – can request a new work permit with the CWI.

This permit will be granted without further questions for as long as is necessary to fulfil the term of three years of legal residence in the Netherlands. In this case, that means that the employee in question will receive a work permit for a period of three years and five months.

May 2003

Nico van Dijk is a tax adviser with Loyens & Loeff in Rotterdam.