The impact of the Brexit on the British employee in the Netherlands (1/3)

Published on Dec 15, 2020

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Adapted on 5 January 2021 Although the UK withdrew from the EU on 31 January 2020, this was not be noticeable in the area of employment law until 31 December 2020. That is because the signing of the withdrawal agreement contained a transitional arrangement until the end of 2020. During this period, all EU rules and laws remained in force for the UK. On 24 December 2020, the UK and the EU reached a trade agreement, averting a no-deal-Brexit. However, the agreement contains few agreements on living and working from 1 January 2021. And that has quite a few consequences for the free movement of workers. This issue of What's for Brexit discusses the consequences for British workers in the Netherlands. Free Movement EU nationals enjoy freedom of movement within the European Union. This means that they do not need a residence or work permit to reside or work in another EU country. However, this does not apply to non-EU nationals. The Aliens Employment Act (in Dutch: ‘Wet arbeid vreemdelingen’ (abbrv. WAV)) stipulates that a foreign national is prohibited from working in the Netherlands without a work permit (Dutch abbrv.: TWV) or a combined work and residence permit (Dutch abbrv.: GVVA). In the Netherlands, non-EU nationals may only work here if they have a work permit or an EU Blue Card, if they comply with the Intra Corporate Transferees Directive or if they have been admitted as Highly Skilled Migrants (in Dutch: ‘Kennismigrant’). British employees working in the Netherlands were still subject to EU law until 1 January 2021. This means that a British employee had the right to reside and work in the Netherlands. After this transitional period, British employees must apply for a residence permit. A separate work permit is not required for this group. The Dutch Immigration and Naturalization Service (Dutch abbrv.: IND) has now sent a letter inviting all British citizens and their family members who came to live in the Netherlands before 1 August 2020 to apply for a residence permit. The advice is to do this as soon as possible, but before 1 July 2021 at the latest. Third country nationals British workers coming to the Netherlands after 31 December 2020 will be considered as third country nationals: someone who is not a national of the EU/EEA or Switzerland. Third-country nationals may also start living in the Netherlands for the first time on 1 January 2021. However, on the basis of the WAV, they will need a valid title to reside and work in the Netherlands. The basic principle is that a TWV or GVVA will only be granted for the position that the third-country national wishes to take up in the Netherlands if there is no "priority offer" on the Dutch or European employment market. The employer who wants to hire a third-country national will have to demonstrate that intensive recruitment efforts have not yielded any results. There is a more flexible policy for foreign nationals who are not expected to enter the Dutch employment market on a permanent basis. This applies, for example, to the transfer of personnel within an international group of companies, academic staff, guest lecturers, musicians and trainees. A more flexible policy also applies to Highly Skilled Migrants. Cross-border workers Finally, there are different rules for British cross-border workers: British nationals who work in the Netherlands and live in the United Kingdom or another EU country. If they came to work in the Netherlands as a UK cross-border worker before 1 January 2021, they can continue to work as a UK cross-border worker after 1 January 2021. This group of cross-border workers must, however, apply for a cross-border worker document from the IND. As far as is currently known, British nationals who wish to work in the Netherlands as a cross-border worker from 2021 also need a work permit. The position of the Dutch worker in the United Kingdom will be discussed in the following issues, in which the consequences for social security will also be discussed. Enough food for thought!