Before COVID, Brexit defined the daily news. Meanwhile, things have been quieter around the Brexit and its consequences for a while. This does not mean that the UK’s exit from the European Union has no consequences for employers and employees in the Netherlands. In this overview article, we discuss the changed positions of employers and employees in the Netherlands.
BREXIT
Since 1 January this year, free movement between EU member states and the UK has ceased. This has major labour law implications. After all, all European Union nationals are subject to free movement within the European Union. This means that they do not need a residence or work permit to reside and/or work in another EU member state. Non-EU nationals are prohibited from working in the Netherlands (for stays of more than three months) without a combined work and residence permit (a so-called “GVVA”), (for stays of less than three months) a work permit (a “TWV”), or another regulation or directive such as an EU Blue Card, the Highly Skilled Migrants Scheme or the Intra Corporate Transferees Directive. UK nationals were nationals of an EU member state until 1 January 2021, so they were also free to live and work in the Netherlands without a permit until 1 January 2021.
BEFORE 1 JANUARY 2021 TO THE NETHERLANDS
It has been agreed that UK nationals who were already working in the European Union before 1 January 2021, meeting the conditions of legal residence and working on the basis of European Union fundamental rights, they will retain this right. For these workers, their employer does not have to apply for a work permit in the Netherlands. However, the employee himself (and for family members) must apply for a residence permit from the Immigration and Naturalisation Service (the “IND”). Depending on how long the employee lives in the Netherlands, he can apply for a residence document for temporary residence (for residence less than five years) or a permanent residence document (for residence longer than five consecutive years).
Please note that UK employees must make these applications via the IND online no later than 30 June 2021.
AFTER 1 JANUARY 2021 TO THE NETHERLANDS
The transitional law described above does not apply to situations arising from 1 January 2021. Workers from the UK are considered third-country nationals. That is, as someone who does not have the nationality of the European Union, the European Economic Area or Switzerland. These workers must apply to the IND for a work permit (a TWV) or work and residence permit (a GVVA). The same rules apply to these workers as to all other third-country nationals. This means that a work permit will only be granted if there is no ‘priority supply’ on the Dutch and European labour market. Employers should therefore bear in mind that these conditions must be met if they want to hire an employee from the UK. The employer must be able to prove that intensive recruitment efforts within the Netherlands and Europe have not yielded results.
This is a fairly strict test. The IND applies a more lenient policy for foreign nationals whose stay is clearly of a temporary nature, such as employees temporarily transferred in an international group and, for example, (student) trainees. A more lenient policy also applies to highly skilled migrants and workers with an EU Blue Card. Moreover, it also applies to these Brits that if they want to settle here for an indefinite period of time after at least five years of residence in the Netherlands, they must also integrate. This is in contrast to Britons who were already residing and/or working in the Netherlands prior to 1 January 2021.
FRONTIER WORKERS
Frontier workers are employees who do not live in the Netherlands but work in the Netherlands. If a frontier worker was already working in the Netherlands prior to 1 January 2021 and meets the other conditions, he or she is entitled to continue working in the Netherlands as a frontier worker. However, this cross-border worker must apply for the Grensarbeider document online. This document is free of charge and valid for up to five years.
If a frontier worker starts working in the Netherlands after 1 January 2021, he or she will not fall under the rules of the Withdrawal Agreement. The cross-border worker or his/her employer must then apply for a work permit.
CROSS-BORDER SERVICES
The rights of posted workers are not covered by the withdrawal agreement. Therefore, the free movement of services between the European Union and the United Kingdom ceased from 1 January 2021. The European Posting of Workers Directive no longer applies to UK employers posting staff to the European Union.
WHAT ARE BRITISH NATIONALS ALLOWED TO DO WITHOUT A PERMIT?
It follows from the Brexit deal what activities short-term business visitors are allowed to carry out in an EU member state without requiring a work permit. The activities listed below, which must not exceed 90 days in any six-month period, are:
– Meeting and consultations
– Research and design
– Marketing research
– Training seminars
– Trade fairs and exhibitions
– Sales, purchasing, after-sales or after-lease services;
– Commercial transactions
– Translation and interpretation
– Deployment of tourist staff
CONCLUSION
The Brexit has meant that UK workers are no longer free to reside and/or work within the European Union without a permit. A distinction exists in the Netherlands between UK workers who were already resident and working in the Netherlands before 1 January 2021 and UK workers coming to the Netherlands only after 1 January 2021. For UK employees coming to the Netherlands to work after 1 January 2021, employees should apply for a work permit.
In a subsequent article, we will further discuss the social security and tax implications.
If you have further questions and/or comments following this article, please feel free to contact us.
