Changes to Work instruction labour market annotation

_{By Nikki Vreede and Romy Hol}

The State Secretary of Justice and Security has recently changed the work instruction 2022/2 on labour market annotations for legal stay in the Netherlands for longer than 3 months. The change has been made specifically for first applications or change of status to a residence permit for self-employment. These applications are subjected to advice of the Dutch Enterprise Agency (RVO), which gives advice about applications for regular residence permits for self-employment, or the Ministry of Education, Culture and Science that gives advise about applications for a residence permit for independent artists. The change of work instruction 2022/2 is not applicable to applications for self-employment based on the Dutch American Friendship Treaty (DAFT), the Dutch-Bolivian Trade Treaty and the Trade and Maritime Transport Treaty between the Kingdom of the Netherlands and Japan. We will discuss the content and bottlenecks of the change of work instruction 2022/2 below.

Labour market annotation

Sadia has been studying in the Netherlands. After she finished her studies, she successfully applied for an orientation year residence permit. This residence permit enables her to work in the Netherlands up until November 1, 2023. Sadia has worked in self-employment as a pianist and wants to apply for a residence permit as a self-employed artist after her orientation year residence permit. For this application, she needs to prove that she serves an essential Dutch cultural interest. This can be proven by submitting confirmation of assignments with Dutch public cultural institutions. Pedro, who is a software engineer and finds himself in the same situation as Sadia, wants to apply for a residence permit as self-employed person as well. He needs to prove that his presence serves an essential Dutch economical interest by showing that he has future assignments with Dutch clients.  

It is important for both Sadia and Pedro that they can perform their assignments with their clients during their application after their orientation year residence permit has expired. That is important for the outcome of their applications, since the processing time of their applications can take up to 9 months. To take a decision, the IND needs to seek advice from the Ministry of Education, Culture and Science or the Ministry of Economic Affairs under which the Dutch Enterprise Agency falls. Therefore, the decision deadline of Sadia and Pedro’s applications will be extended with 3 to 6 months.

Sadia and Pedro will have to collect a residence endorsement sticker at the IND to prove that they are allowed to work pending their applications. The sticker will be placed in their passports, proves their legal stay during the application and contains a labour market annotation. However, it is not possible anymore to work in self-employment during the application without a separate work permit (TWV) due to the change of work instruction 2022/2. To work on assignments while Sadia and Pedro are waiting on a decision on their applications, they have to apply for a separate work permit for every different client or different assignment at UWV.  That is unworkable since for the TWV application their clients must prove that they have been looking for staff for the past 3 months within the Netherlands and the European Union and could not find anyone to fill this position. Sadia and Pedro’s potential clients may not be able or want to take this effort and it will make working on ad hoc assignments a lot harder for them. Therefore, this leads to a lot of problems for people who are awaiting the outcome of their application as self-employed persons in practice. Sadia and Pedro need to meet the requirements of their requested residence permits by taking on the assignments but will eventually have to cancel on their assignments, because they are not allowed to work without a separate work permit. This not only leads to financial damage, but also to reputational damage.

The financial consequences will also impact future residence permits. To be able to meet the requirements of an extension application for a residence permit as self-employed person, you need to generate income. The IND looks back at the gross profit of the self-employed person for the past 18 months prior to the extension application. The first residence permit for self-employment will initially be granted per date of application and is valid for 2 years (24 months). If this residence permit is valid for 24 months, of which the applicant is not allowed to work in self-employment for approximately 6 to 9 months, the applicant cannot show that they have generated enough profit over the past 18 months and meet the income requirement. This means that in this situation Sadia and Pedro run a risk of rejection of future extension applications as well.

Procedure at the court

In the light of the change of work instruction 2022/2, Everaert Immigration lawyers recently has filed three preliminary injunctions for three independent artists at the court of Amsterdam. We asked the court to instruct the IND to allow them to keep working pending the application. These procedures have been successful with the result that all three clients have received a residence endorsement sticker which proves they are allowed to work pending their applications.

Conversations to reach a solution

The involved Ministries are in conversation with each other to reach a solution for this group of self-employed persons to enable them to keep working pending their application. Even though we are hopeful for a solution on short term, the only option for Sadia and Pedro now is to file a preliminary injunction at the court and ask for a residence endorsement sticker to be able to work pending their application. In our opinion, this route is an unnecessary strain to the judiciary. Hopefully we will see a positive change of work instruction 2022/2 soon.

Lecture international art students

Are you in the same situation as Sadia and Pedro or do you wish to seek advice regarding your immigration status? Feel free to reach out to one of our lawyers specialized in the Creative Industry or come to our free lecture on May 30, 2024, at 9 P.M. at Studio/K in Amsterdam. The lecture is for international art students who wish to stay in the Netherlands after completing their studies. Check this page on how to sign up for the lecture.

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