Netherlands: Changes in Dutch employment law and what this means for TCNs if they lose their job
Labour migrants are often dependent upon their job to maintain their residency status in the Netherlands. Therefore it is important to know what the recent changes to Dutch employment law mean for the rights of Third Country Nationals (TCNs) when their employment with an organisation is terminated. When TCNs face losing job, it is important to know whether your employment is terminated 'by mutual consent' or not. If not, then legal proceedings will follow. If it is terminated by mutual consent, in the form of a settlement agreement, is not considered a culpable termination provided that the settlement agreement explicitly states that the employee was not at fault and that it was the employer’s initiative to terminate the employment contract.
Contracts of foreign local hires ('Inpat') working in the Netherlands are in principal subject to Dutch law. 'Inpats' or employees working on a foreign employment agreement and on temporary secondment to the Netherlands may not enjoy protection from dismissal.
Losing your residence right, but 3 months transition-phase
With an employment-based residence permit (such as a highly skilled migrant permit or a permit for paid employment), premature employment termination means losing both the source of income as well as the right to stay in the Netherlands.
However, in order for TCNs to prolong their stay, Dutch law provides for a three-month job-search period. The main requirement for highly skilled migrants to qualify for a search period is that the employer has taken initiative for the termination of the contract. The TCN will not qualify for this transition period if het/she lost his/her job due to 'culpably': TCN is at fault for getting fired for, for example, serious misconduct or failing to formally protest to a notice of dismissal. If you have a regular residence permit for employment, you’re in a slightly better position than highly skilled migrants because you will be granted a period of three months regardless of the termination grounds.
- You may be eligible for short-term unemployment benefits if:You are insured for unemployment in the Netherlands
- You worked at least 26 weeks out of the last 36 weeks before you became unemployed
- Your dismissal is not culpable
Those who were seconded to the Netherlands and who hold a "Certificate of Coverage" likely have not been contributing to the unemployment benefits scheme in the Netherlands and hence may not be eligible. The element of culpability is assessed along the same lines as how your eligibility for unemployment benefits (WW uitkering) is determined.
Notify IND of employment termination
Your employer has to notify the Immigration and Naturalisation Services (IND) of your contract termination within four weeks. Although your search period starts more or less automatically by law, it can happen that the IND starts a process anyway to withdraw your residence permit.
If you are not able to find a new job within the three months - one that matches the requirements of your permit - your residence permit will be withdrawn with retroactive effect as from the termination date. Please note that if the latter occurs, you may face a residence gap. A residence gap can have significant consequences for any future applications and procedures in the Netherlands.