Will a leave of absence jeopardise your residence permit?
Everaert Advocaten is a respected leader in Dutch immigration law. Based in Amsterdam, its multilingual team advises expats on residency and immigration-related legal issues.
If you’re an employee, you are legally entitled to holidays and time off related to certain life events, such as sick leave, maternity leave and parental leave. Besides these statutory entitlements, your employer may have policies on working part-time and taking unpaid leave or be bound to arrangements made by a collective bargaining agreement (CAO).
Under Dutch labour laws, migrant workers are equally entitled to these rights, irrespective of their nationality or immigration category. However, the statutory or binding nature of these entitlements does not prevent migrant workers from running the risk of having their residence permit revoked. This article will allow you to determine whether taking a leave of absence is risky for you.
Are you from the EU, the EEA or Switzerland or non-sponsored?
If you’re from the EU, the EEA or Switzerland, taking time off will not jeopardise your immigration status. If you’re from a third country, this applies to you equally if you are non-sponsored, e.g. if you hold a permanent residence permit or a temporary residence permit for a search year or on (non)temporary humanitarian grounds.
Who is your sponsor?
If you are sponsored, you need to determine who your sponsor is. If you are sponsored by someone other than your employer, taking time off work will not jeopardise your immigration status. However, if you are sponsored by your employer it may, depending on how you answer the next questions.
Will you be working part-time or will your time off result in a lower wage?
If you are sponsored by your employer, you need to determine if taking time off will result in a lower wage. If not, it will not jeopardise your immigration status. Examples are maternity leave and garden leave (an employee is relieved from work before their employment is terminated while they continue to receive their salary).
If your time off will result in a lower wage or if you’ll be wanting to work part-time, you must determine whether your new salary will still meet the full-time amount of the threshold for your immigration category. If it drops below the threshold, your residence permit may be revoked due to taking time off. However, there are exceptions to this depending on the nature of your time off.
What is the nature of your time off?
The State Secretary of Justice and Security has not published any policy rules on leave of absence, so, legally, any leave of absence resulting in your salary dropping below the threshold could result in a revocation of your residence permit. However, the Immigration and Naturalisation Service (IND) has published a practice for how they deal with time off if the employee holds a residence permit as a highly-skilled migrant.
I believe it can be defended that ICT(Intra Company Transfer) and EBC (European Blue card) holders should benefit from this practice as well. According to the practice, a leave of absence governed by the Wet Arbeid en Zorg is allowed, even if this results in the salary dropping below the threshold, provided the following conditions are met:
- The highly skilled migrant has paid / unpaid parental leave (for a child up to the age of 8) as laid down by law
- The highly skilled migrant and / or sponsor are able to demonstrate that the highly skilled migrant has paid / unpaid leave as laid down by law
- The highly skilled migrant and / or employer notify the IND of the paid / unpaid leave as laid down by law and the consequences it has for the level of income
- The IND receives this notification within 4 weeks after your leave has started
This is the only exception, which means your residence permit will be at risk of being revoked if you, e.g.:
- Are on sick leave, and your wage drops below the threshold
- Become disabled
- Are on any unpaid leave or sabbatical
- Will be working part-time, and your wage drops below the threshold
If these events occur, your sponsor is required to report it to the IND within four weeks. The IND will then decide whether or not to revoke your residence permit. If the IND intends to revoke, either you or your sponsor will receive a notice of intent by post, granting you two weeks to respond.
I hope this article will help you to determine if you can utilise your entitlement to a leave of absence without risking your residence permit. The question remains whether it is fair that migrant workers, who pay social security and taxes the same as any worker, are unable to utilise entitlements to time off to the same extent as their Dutch and EU colleagues.
Do you want to know more about taking a leave of absence and how it might affect your residence permit? Don't hesitate to contact Marcel Reurs from Everaert Advocaten.