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The knowledge migrant: dismissal and residence rights

A foreign employee, who has a residence permit to stay in the Netherlands under the knowledge migrant scheme but loses his / her job, may also lose the right to reside in the Netherlands.

What is the position exactly?

A knowledge migrant is invited to move to the Netherlands by an employer based here. His / her residence permit is issued for the duration of the employment contract or, if the contract is for an indefinite period, for a maximum of five years.

› The employee changes job

Changing job is permitted. However, the new employer must be a participant in the IND’s Knowledge Migrant Scheme and must comply with the salary criterion that applies to the hiring of knowledge migrants.

› The employee’s temporary employment contract is not extended

The residence permit is issued for the duration of the employment contract. Once the employment contract ends, the right of residence expires too.

› The employer wishes to terminate the employment contract prematurely

The Aliens Act and the accompanying Aliens Circular describing how the Act is to be implemented maintain a strict rule: a foreign national who loses his / her job "culpably" also loses his / her right of residence.

This may include cases of summary dismissal, notice of dismissal against which the employee has not protested or, most commonly, the situation in which an employee signs a settlement agreement with the employer in which the parties agree to the ending of the employment contract, with compensation being payable.

Even if the settlement agreement includes a provision specifying that the employee be not at fault, by signing the agreement the employee will have consented to his / her dismissal and will therefore, according to the legislation, be "culpable." The right of residence will expire.

In cases of dismissal without "culpability," the dismissed knowledge migrant will be entitled to a three-month period in which to search for work.

Because he / she will have a valid residence permit during that period, it will also be possible to request unemployment benefit payments.

What to do when facing the risk of dismissal?

Make sure you take advice from a specialist in labor and immigration law before signing a settlement agreement; there are alternatives.

For instance, the employer may submit a request for dismissal to UWV WERKbedrijf or the district court.

If the request is framed in the right way, the employer can terminate the contract and the employee will retain his / her right of residence for at least three months.

Ester

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Ester de Vreede

Ester combines an extensive knowledge of employment law and immigration law, which proves to be an asset and of specific interest for highly skilled expats and companies that employ them....

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