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ADMITTING THIRD-COUNTRY NATIONALS FOR BUSINESS PURPOSES IN THE NETHERLANDS

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The European Migration Network (EMN) has been set up by the Council of the European Union. The EMN collects up-to-date, objective, reliable and where possible comparable information on migration and asylum. The EMN publishes reports on a variety of subjects in the fi eld of asylum and migration.The establishment of the EMN is consistent with the aim of the EU to establish an effective asylum and migration policy.

www.emnnetherlands.nl

The EMN was established via Council Decision 2008/381/EC of 14 May 2008 and is fi nancially supported by the European Commission.


December 2014

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INDIAC NL EMN NCP DECEMBER 2014 ADMITTING THIRD-COUNTRY NATIONALS FOR BUSINESS PURPOSES IN THE NETHERLANDS

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Title Admitting third-country nationals for business purposes in the Netherlands

Authors Monique van DaelHenrika Wö[email protected] of Security and JusticeImmigration and Naturalisation Service (IND)Directorate for Strategy and Advice (DUSA)IND Information and Analysis Centre (INDIAC Department)Dutch national contact point for the European Migration Network (EMN)Dr. H. Colijnlaan 341 | 2283 XL Rijswijk PO Box 5800 | 2280 HV Rijswijk

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EXECUTIVE SUMMARYThis study provides information about the admission of third-country nationals coming to the Netherlands for business purposes. The focus is on three different categories: third-country nationals who come to the Netherlands as immigrant investors, third-country nationals who (want to) practise a profession in the Netherlands on a self-employed basis (immigrant business owners) and third-country nationals who come to the Netherlands for business purposes within the context of international trade (other business persons). The first two categories are given a residence permit which allows them to live and work in the Netherlands for a longer period of time. The third category may come to the Netherlands on an occasional basis or for a short period using a Schen-gen visa (business visa) or gain temporary access to the Dutch labour market.

Ambition and practice not mutually consistent yetThe ambition of the Netherlands to attract third-country nationals who want to come to the Netherlands for business purposes and actual practice are not mutually consistent (yet):

• So far, no third-country nationals have been admitted under the scheme for immi-grant investors yet.

• During the period from 2009 to 2013, a limited number of third-country nationals came to the Netherlands as immigrant business owners.

• Only little information is available about the number of businesspersons coming to the Netherlands within the context of international trade.

The Dutch scheme for immigrant investors entered into force on 1 October 2013. Prepa-rations for an evaluation of the scheme have been started. On 1 June 2014, a number of changes were implemented which mostly relate to the time an immigrant investor is allowed to stay abroad. The conditions to be met in order to qualify for a residence per-mit have also been adjusted. Moreover, the scheme was clarified on a number of points.

The Netherlands as the place to be for ambitious entrepreneurs is actively promoted in the Netherlands and abroad within the context of the ambitious entrepreneurship pro-gramme. In principle, any immigrant business owner may qualify for a residence permit to work on a self-employed basis, provided that essential interests of the Netherlands are served and the conditions for residence are met. The interests of the Netherlands are served, for example, if a contribution is made in the area of public health, culture or the economy, or in a socio-economic area. The Netherlands has two admission schemes for immigrant business owners: the immigrant business owner scheme and a scheme for start-up entrepreneurs. The former scheme has already entered into force and the latter scheme will take effect on 1 January 2015.

The scheme for start-up entrepreneurs is part of an action programme for ambitious entrepreneurship, which was already initiated by the government this year. The aim is to

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create an ambitious and attractive business climate and to attract new start-up businesses and entrepreneurs from abroad, which will contribute to strengthening the Dutch eco-nomy. Start-up entrepreneurs often do not qualify for the self-employment scheme, because they do not (yet) have a detailed business plan or do not (yet) have sufficient start-up capital.

The action programme for ambitious entrepreneurship will assess what is needed in order to attract entrepreneurs. Some entrepreneurs falling in the top sectors used to be rejected. The points system was adjusted for this purpose. This is especially important for the creative sector. The number of immigrant business owners coming to the Nether-lands has slightly increased over the past few years, but the total number continues to be low.

Apart from the national policy on admitting third-country nationals for business purpo-ses, the free-trade agreements within the context of the World Trade Organization (WTO), bilateral free-trade agreements and association agreements contain provisions on the admission of persons to the Netherlands within the context of international trade. These provisions cover the admission of third-country nationals to the Nether-lands who want to come to the Netherlands on an occasional basis and for a short period and third-country nationals who want to gain temporary access to the Dutch labour market. Businesspersons who want to come to the Netherlands for a short period can apply for a Schengen visa to a Dutch representation abroad. They are allowed to stay in the Netherlands for a maximum of 90 days. Entrepreneurs who have a business relation-ship with companies in the Netherlands and whose employees have to travel to the Netherlands on a regular basis can make use of the Orange Carpet Visa programme of the Ministry of Foreign Affairs. Businesspersons who want to gain temporary access to the Dutch labour market can apply for a single permit. If third-country nationals are admitted within the context of promoting international trade contracts, the Nether-lands Employees Insurance Agency (UWV) can issue a work permit without performing a labour market test. So far, only limited research has been conducted into the policy for employees coming to the Netherlands within the context of international trade.

Active promotion of the Netherlands as host countryThe Dutch government tries to attract third-country nationals who want to come to the Netherlands for business purposes, and therefore actively promotes the Netherlands as host country. An example of this promotion is that the Ministry of Economic Affairs has set up the Netherlands Foreign Investment Agency (NFIA) in order to provide clear infor-mation to interested parties about entrepreneurship in the Netherlands. Moreover, the Netherlands appointed a Special Envoy ambassador in order to strengthen the interna-tional position of Dutch start-up entrepreneurs in other countries. The ambassador also looks at opportunities for stimulating entrepreneurs from third countries to establish their business in the Netherlands.

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INHOUD Executive summary 3 List of abbreviations 6 List of tables 6

1 Introduction 71.1 Methodology 71.2 Reader’s guide 8

2 The national framework for admission 92.1 Policy for immigrant investors 92.2 Policy for immigrant business owners from third country nationals 132.3 Policy within the context of international trade 20

3 Measures for preventing improper use and misuse 273.1 Immigrant investors 273.2 Immigrant business owners from third countries 273.3 International trade 29

4 Policy evaluation; challenges and obstacles 314.1 Policy for immigrant investors 314.2 Policy for immigrant business owners from third countries 334.3 Policy within the context of international trade 37

5 Good practices and points for improvement 395.1 Good practices 395.2 Points for improvement 40

6 Conclusions 41

Annex: Definitions 43

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LIST OF ABBREVIATIONSBIG Wet op de Beroepen in de Individuele Gezondheidszorg or Individual Healthcare Professions ActBRP Basisregister Persoonsgegevens or Persons DatabaseBuWav Besluit uitvoering Wet arbeid vreemdelingen or Labour Act for Aliens (Implementation) DecreeBV Besloten Vennootschap, a Private Limited Liability Company under Dutch lawEMN European Migration NetworkEU European UnionFIU Financial Intelligence UnitGVVA Gecombineerde Vergunning voor Verblijf en Arbeid or Single PermitICT Intra-Corporate TransfereeISZW Inspectie Sociale Zaken en Werkgelegenheid or Social Affairs and Employment InspectorateSME Small and Medium-sized EnterpriseMVV Machtiging Voorlopig Verblijf or Regular Provisional Residence PermitNFIA Netherlands Foreign Investment AgencyNVP Nederlandse Vereniging van Participatiemaatschappijen or Netherlands Venture Capital AssociationIND Immigratie- en Naturalisatiedienst or Immigration and Naturalisation ServiceRuWav Regeling uitvoering Wet arbeid vreemdelingen or Labour Act for Aliens (Implementation) RegulationsRVO Rijksdienst voor Ondernemend Nederland or Netherlands Enterprise AgencyTWV Tewerkstellingsvergunning or Work PermitUWV Uitvoeringsinstituut Werknemersverzekeringen or Netherlands Employees Insurance AgencyVOF Vennootschap onder Firma, a general partnership under Dutch lawWav Wet arbeid vreemdelingen or Labour Act for AliensWTO World Trade Organization

LIST OF TABLES Table 1: Residence permit to work as an immigrant business owner 34

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1 More information can be found at http://www.neth-er.eu/nl/nieuws/Europese-Raad-beschrijft-kernprioriteiten-tot-2020.

2 More information can be found at http://ec.europa.eu/enterprise/policies/sme/entrepreneurship-2020/index_en.htm.

3 More information can be found at http://www.rijksoverheid.nl/documenten-en-publicaties/kamerstukken/2014/03/17/

kamerbrief-over-beleid-voor-ambitieuze-ondernemers.html

4 This report is an adaptation of the contribution of the Dutch national contact point to the EMN report. This can be found via

http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration_network/index_en.htm.

1 INTRODUCTIONLabour migration plays a key role in the EU’s external migration policy and forms an integral part of the cooperation and dialogue between the European Union and third countries. The European focus on stronger economies with more jobs is one of the key priorities of the strategic agenda adopted by the European Council in June 2014 for the next five years.1

The European Commission’s Entrepreneurship 2020 Action Plan emphasises the positive contribution that immigrant investors and entrepreneurs can make to sustainable growth and employment. In its action plan, the Commission requests that the Member States minimise the legal obstacles for third-country nationals to set up businesses.2

This study provides information about the admission of third-country nationals coming to the Netherlands for business purposes. The focus is on three different categories: a) third-country nationals coming to the Netherlands as immigrant investors, b) third-country nationals who (want to) practise a profession or operate a business in the Netherlands on a self-employed basis and c) other businesspersons. The last-mentioned category includes the admission of third-country nationals who come to the Nether-lands for business purposes within the context of international trade. These employees can come to the Netherlands on an occasional basis or for a short period (with a Schen-gen visa) or be granted temporary access to the Dutch labour market.

For the Netherlands, the introduction of the admission scheme for immigrant investors is one of the strategies to make the Dutch business sector more innovative and to incre-ase employment. Furthermore, the Netherlands initiated an action programme for ambitious entrepreneurship this year.3 The aim is to create an ambitious and attractive business climate and to attract new start-up businesses and entrepreneurs from abroad, which will contribute to strengthening the Dutch economy.

The General Agreement in Trade in Services (GATS) provides that persons may be tempo-rarily transferred to the other party’s territory in order to provide services. Third-country nationals are admitted to the Dutch labour market within the context of promoting international trade contacts and attracting new economic activities.

1.1 Methodology

This report was written on the instructions of the European Migration Network (EMN).4

The EMN, which was set up on the initiative of the European Commission, collects and analyses information about migration and asylum. This information concerns, among

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other things, social and political debates, scientific research, statistics, policy and case law. The collection and analysis of this information at both the European and national level support policymaking in the area of migration and asylum.

The research specifications of the report were set at a European level. As the national contact point for the EMN in the Netherlands, the Information and Analysis Centre (INDIAC) of the Directorate for Strategy and Advice (DUSA) of the Immigration and Naturalisation Service (IND) is responsible for the Dutch report. Based on this report and the reports published by the other Member States of the European Union (EU), the EMN draws up an EU-wide comparative synthesis report.

The research was supervised by a focus group consisting of staff of the Ministry of Secu-rity and Justice (Directorate for Migration Policy, the Implementation Guidance Depart-ment and the Enforcement Department of the Immigration and Naturalisation Service), staff of the Ministry of Foreign Affairs, staff of the Ministry of Social Affairs and Employ-ment, staff of the Ministry of Economic Affairs, staff of the Netherlands Enterprise Agency (RVO) and the Netherlands Foreign Investment Agency (NFIA). The research was also supervised by a scientist of the Erasmus University Rotterdam. Desk research was conducted and if it was not possible to find any information from non-independent written sources, the focus group members were asked on the basis of their expertise.

1.2 Reader’s guide

The second chapter of this report outlines the national framework for admitting third-country nationals for business purposes. A distinction is made between the schemes for immigrant investors, entrepreneurs from third countries and other businesspersons. Chapter 3 details the Dutch policy on improper use and misuse of the regulations for admitting third-country nationals. Here, too, a distinction is made between immigrant investors, entrepreneurs from third countries and the ‘other businesspersons’ category. Incidentally, Dutch legislation does not include any definitions of improper use or misuse. However, examples of this are given for each scheme. Chapter 4 focuses on policy evaluation and deals with challenges and obstacles. Finally, Chapter 5 shows that the Netherlands is trying to facilitate labour migrants by easing and simplifying admis-sion rules.

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2 THE NATIONAL FRAMEWORK FOR ADMISSION

This chapter outlines the national framework for admitting third-country nationals for business purposes. A distinction is made between the schemes for immigrant investors, entrepreneurs from third countries and other businesspersons.

2.1 Policy for immigrant investors A national immigrant investor is a third-country national investing at least €1,250,000 in a Dutch company. The aim of the admission scheme for immigrant investors is to make the Dutch business sector more innovative and/or to increase employment. The conditi-ons for admission in this category have been laid down in the scheme for immigrant investors.5

The Ministry of Security and Justice, the Immigration and Naturalisation Service (IND) and the Netherlands Enterprise Agency (RVO) are the most important authorities for developing policy on immigrant investors. The Ministry of Security and Justice coordina-tes this policy. The IND implements the scheme on the instructions of this Ministry. The cooperation between the IND and RVO has been laid down in a covenant. This also applies to the cooperation between the IND and the Financial Intelligence Unit Nether-lands (FIU), which tests the origin of the assets.

Possibilities for investmentThe Netherlands has four possibilities for investment which meet the investment requi-rement, i.e. investing in a Netherlands-based:

• Innovative enterprise, or;

• Contractual joint venture investing in one or more innovative enterprises, or:

• Participation fund affiliated with the Netherlands Venture Capital Association (Nederlandse Vereniging van Participatiemaatschappijen, NVP), or;

• A seed fund in formation that is recognised by the Ministry of Economic Affairs.6 A seed fund is an investment fund for investments in high-risk start-up technology and/or creative businesses, which complies with the Seed Capital scheme of the Minis-try of Economic Affairs. This possibility only includes seed funds in formation, because investors cannot join seed funds that are already recognised.

Attracting immigrant investorsThe Immigration and Naturalisation Service (IND) organises information meetings for interested companies and intermediaries for immigrant investors. At these meetings, the IND explains the conditions for admission, the evidence that is required and the entire procedure. The Netherlands Enterprise Agency (RVO) explains the assessment of the added value of the investment for the Dutch economy. The website of the Immigra-tion and Naturalisation Service (IND) contains information about the scheme for immi-

5 Article 14 of the Aliens Act 2000 and Article 3.29a(2) of the Aliens Decree 2000 form the basis for this scheme. The scheme has

been detailed in Chapter B11 of the Aliens Act Implementation Guidelines 2000.

6 See also: http://www.rvo.nl/subsidies-regelingen/seed-capital-voor-investeerders

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grant investors in Dutch and in English under the “Zakelijk”/”Business” tab sheet.7 A list of questions and answers concerning the scheme for immigrant investors can also be found here. There is also a (Dutch) IND brochure about the scheme: Investeren en wonen in Nederland (Investing and living in the Netherlands).8

Conditions for admission and residenceBefore third-country nationals can make use of the Scheme for Immigrant investors, they must meet several specific conditions. These conditions can be divided into conditi-ons prior to their arrival in the Netherlands and conditions that are set after their arrival in the Netherlands.

Conditions for admission to the NetherlandsIn short, there are four conditions for being admitted to the Netherlands as an immi-grant investor: 1. the third-country national invests a minimum amount of €1,250,000 in a recognised enterprise that is based in the Netherlands; 2. the amount to be invested is paid into a bank account of a Dutch bank or a bank of an EU Member State with a branch in the Netherlands that is supervised by De Nederlandsche Bank; 3. according to the Netherlands Enterprise Agency (RVO), the investment has added value for the Dutch economy; and 4. there is no evidence that the origin of the assets used for the invest-ment is mala fide.

Moreover, the investor must submit an investment plan if he will be investing in an inno-vative enterprise or in a contractual joint venture (which will be investing in one or more innovative enterprises). If money is invested in a fund, there must be a fund plan sho-wing the sectors in which the fund will be investing. Moreover, the added value for the Dutch economy in the area of innovation and/or employment must be evident. This will be tested by the Netherlands Enterprise Agency (RVO). Applications will be tested by the Netherlands Enterprise Agency (RVO). The test comprises two parts, namely criteria to be met by an enterprise and the effects of the investment. For this, a points system is used.9

Testing the added value of investmentsTests of the added value of investments in the area of innovation and/or employment include a primary test and a secondary test. The primary test includes a test of the criteria to be met. These criteria are: a registration of the enterprise in the Commercial Register of the Chamber of Commerce, a positive nature of the investment for the Dutch eco-nomy and a guaranteed continuity of the enterprise after the investment. The secon-dary test uses a points system in order to assess the effects of the investment, including employment creation, innovativeness and non-financial contribution by the third-coun-try national in the enterprise. A minimum score of 25 out of 50 points must be obtained here.

7 More information can also be found on the website of the Immigration and Naturalisation Service: www.ind.nl

8 The Dutch brochure about the Scheme for immigrant investors can be found here: https://ind.nl/Documents/3095.pdf

9 Points system for assessing the added value for the Netherlands by immigrant investors: https://zoek.

officielebekendmakingen.nl/stcrt-2013-26270.html

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Top sectorsOne of the parts for which points for innovativeness can be scored is through the Top Sectors.10 In assessing the added value of an investment for the Dutch economy, the Netherlands Enterprise Agency (RVO) grants points in case of investments in one of the Top Sectors of the Netherlands.

The 9 Top Sectors of the Netherlands are:

• Agriculture & Food

• Chemistry

• Creative Industry

• Energy

• High-tech Systems & Materials (including the intersecting theme of IT)

• Life Sciences & Health

• Logistics

• Horticulture and Propagating Materials

• Water

As these sectors are knowledge-intensive, focus on export and can make an important contribution to solving social issues worldwide, they are designated as Top Sectors. According to the government, large enterprises and Small and Medium-sized Enterpri-ses (SMEs) in these internationally operating sectors provide for prosperity and employ-ment in the Netherlands. The aim of the Top Sectors policy is to use the earning potential of these sectors and to strengthen the Dutch competitiveness and economy.

Origin of assetsAnother condition to be met by third-country nationals is that the origin of their assets should be demonstrated. The origin of the assets used for the investment may not be mala fide. Immigrant investors should demonstrate this by submitting an opinion of a Dutch auditor, stating that there is no evidence that the origin of the assets is mala fide. The IND asks the Financial Intelligence Unit Netherlands (FIU) for information about the origin of the assets and the FIU investigates (also in the country of origin) if the third-country national is involved in any suspicious transactions. The FIU Netherlands is char-ged with the implementation of the Money Laundering and Terrorist Financing (Preven-tion) Act. The FIU can use its international network in this connection.

Investment planAs indicated earlier, immigrant investors must submit an investment or fund plan prior to the investment. This can be used to test the added value of the investment for the Netherlands. The aspects to be included here are the details of the enterprise, the name of the investor, a planning, the purpose and volume of the investment, conditions for the investment as set by the investor and a signature of both the investor and the enter-prise. Important points for attention here are the type and number of jobs to be created and the relevant time frame for this, and the innovativeness of the enterprise.

10 More information can be found at: www.topsectoren.nl

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This plan must be approved by the IND, on consultation with the Netherlands Enterprise Agency (RVO), which checks the economic added value of the investment, and the Financial Intelligence Unit, which performs a background check of the investor. The RVO will complete its test within 1 month.

Other documents required are an extract of the registration of the enterprise with the Chamber of Commerce and the three most recent annual reports. A business plan and the available number of annual reports will suffice for enterprises incorporated less than 3 years ago.

Other conditionsThe IND will perform a standard test as to whether the third-country national poses a danger to public order or national security.11

Moreover, immigrant investors who are admitted will be subject to the general require-ment for third-country nationals to be screened for tuberculosis within 3 months after arrival in the Netherlands. A statement issued in respect of this must be sent to the IND. Furthermore, Dutch healthcare insurance must be taken out for both the investor and any family members within 4 months and, within that same period, they must register in the Persons Database of the Dutch municipality where they are living.

All these admission criteria apply to all third-country nationals: to third-country natio-nals coming to the Netherlands under the scheme for immigrant investors as well as to third-country nationals who are already in the Netherlands and want to change their residence status into ‘immigrant investors.

A residence permitThe rules on main residence in the Netherlands have been relaxed for third-country nationals who are granted a residence permit under the scheme for immigrant investors. The main rule is that third-country nationals must reside in the Netherlands for at least 6 months a year. This will be 4 months a year for immigrant investors. These 4 months may be spread throughout the year.

A third-country national applying for and being granted a residence permit under the scheme for immigrant investors is allowed to work in the Netherlands and is not obliged to participate in a civic integration programme. Moreover, family members may be enti-tled to a residence permit in the Netherlands if the conditions for family reunification or formation are met. For them, too, work will be freely permitted and they are not obli-ged to participate in a civic integration programme either. Immigrant investors must be able to support themselves. If they rely on social assistance, this will be a reason to with-draw their residence permit.

11 More information can be found at http://www.rijksoverheid.nl/nieuws/2013/09/20/vermogende-vreemdelingen-makkelijker-

toegelaten.html

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After having had a temporary residence permit for five years, third-country nationals may submit an application for naturalisation to become a Dutch citizen. This is subject to the condition that they must have passed the civic integration examination.

Residence documentIf an entry visa is required in order to enter the Netherlands, the Netherlands or, as the case may be, the Dutch representation abroad will first issue a regular provisional resi-dence permit (machtiging tot voorlopig verblijf, MVV). After their entry into the Nether-lands, immigrant investors can go to the Immigration and Naturalisation Service to col-lect their residence permit. If no entry visa is required, the Netherlands will issue a tem-porary residence permit directly. An MVV, the Dutch version of the long-stay visa, is valid for 3 months. No MVV is required for citizens from Australia, Canada, Japan, Monaco, New Zealand, Vatican City, the United States of America and South Korea.

In order for a residence permit to be issued after entry into the Netherlands with a regu-lar provisional residence permit (MVV), it is important for a third-country national that he or she still meets the conditions for admission. If no changes have become apparent, the Immigration and Naturalisation Service will issue the residence document after having checked the applicant’s identity and nationality. This will also require a valid border-crossing document.

The term of the residence permit can be extended upon request. If the immigrant inves-tor meets the conditions for extension, the residence permit will be extended for 5 years.

These conditions are:

• the invested assets of at least 1,250,000 euros are not withdrawn;

• the Netherlands Enterprise Agency (RVO) believes that the investment has added value for the Dutch economy

• There is no evidence that the third-country national is involved in any transaction considered suspicious by the Financial Intelligence Unit Netherlands (FIU).

2.2 Policy for immigrant business owners from third country nationals

Under Dutch legislation, immigrant business owners are defined as third-country natio-nals who (want to) practise a profession or operate a business in the Netherlands on a self-employed basis. There are no restrictions on the type of enterprise here. In principle, any entrepreneur in any sector (except for the prostitution sector) may qualify for a residence permit to work on a self-employed basis, provided that essential interests of the Netherlands are served.

The Netherlands has two admission schemes for immigrant business owners: the self-employment scheme and a scheme for start-up entrepreneurs. The former scheme

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already entered into force on 1 August 2013 and the latter scheme will take effect on 1 January 2015. The most important conditions for each scheme are detailed below.

The ministries involved in both schemes are the Ministry of Economic Affairs and the Ministry of Security and Justice. Other relevant parties to the implementation of both schemes are the Netherlands Enterprise Agency (RVO) and the Immigration and Natura-lisation Service (IND).

The Ministry of Economic Affairs is charged with the coordination of the programme. Both schemes fall under the statutory responsibility of the Ministry of Security and Jus-tice. Stimulating entrepreneurship and related policy programmes, such as the ambiti-ous entrepreneurship programme, fall under the policy themes of the Ministry of Eco-nomic Affairs.

Other ministries are also involved in the implementation of new schemes, such as the start-up scheme, and policy programmes such as Ambitious Entrepreneurship. Examples are the Ministry of Finance, the Ministry of Education, Culture and Science, the Ministry of Social Affairs and Employment and the Ministry of Foreign Affairs.

The self-employment schemeImmigrant business owners, ambitious innovative entrepreneurs in particular, are a source of innovation, new jobs, internationalisation and productivity for the Nether-lands. The scheme is based on the fact that third-country nationals can be granted a residence permit to work on a self-employed basis if this serves essential interests of the Netherlands. These interests could be interests in the area of public health, culture, the economy or in a socio-economic area.

The Minister of Economic Affairs uses a points system to check if a third-country national makes a substantial contribution to the Dutch economy. This points system consists of three parts: personal experience, a sound business plan and the added value of the eco-nomic activities for the Dutch economy. This will be discussed in more detail below.

Scheme for start-up entrepreneursThe government initiated an action programme for ambitious entrepreneurship this year. This programme contains more than 30 proposals that should make it easier for start-up businesses and growing businesses from the Netherlands and abroad to do suc-cessful business and to grow rapidly in the Netherlands. The aim is to create an ambiti-ous and attractive business climate and to attract new start-up businesses and entrepre-neurs from abroad, which will contribute to strengthening the Dutch economy.

This action programme includes the introduction of a flexible admission scheme for start-up entrepreneurs from outside the European Union. Start-up entrepreneurs often did not qualify for the self-employment scheme, because they often do not yet have a

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detailed business plan or sufficient start-up capital. However, they have great potential to contribute to Dutch prosperity and competitiveness.

This scheme will take effect on 1 January 2015. The conditions for start-up entrepreneurs are: they must have a step-by-step plan and have an experienced supervisor, also called a facilitator. The scheme includes a marginal test of the plans of the start-up business and an extensive test with respect to the facilitator of the start-up business.12

Facilitators must, for example, have a demonstrable track record when it comes to super-vising start-up businesses, be financially healthy and be registered with the Commercial Register of the Chamber of Commerce. Moreover, they must be able to help start-up businesses with, for example, business operations, marketing, research and finding investors. So facilitators must be able to offer high-quality support to start-up busines-ses.

Attracting entrepreneurs from third countriesThe Netherlands as the place to be for ambitious entrepreneurs is actively promoted in the Netherlands and abroad within the context of the ambitious entrepreneurship pro-gramme. This promotion is coordinated by the Ministry of Economic Affairs. The Minis-try is ultimately responsible for the policy theme. Various means of communication (in English) are used to promote the Netherlands. Examples are websites, newsletters and working visits paid by Ministers. Moreover, a Special Envoy Ambassador is appointed for the purpose of promoting the Netherlands and attracting start-up entrepreneurs.13 On 7 December 2014, it was announced that Neelie Kroes will fill this position. She will focus on strengthening the international position of Dutch start-up businesses and growing businesses and encouraging foreign start-up businesses to establish in the Netherlands. This is done within the context of the StartupDelta initiative, which outlines a legal framework for ambitious start-up businesses from outside the European Union. Startup-Delta will cooperate with existing associations of start-up businesses, such as High Tech Campus in Eindhoven and Kennispark Twente.14 An ambitious package of financial mea-sures will broaden the financial scope of Small and Medium-sized Enterprises.

Moreover, campaigns supported by the Ministry of Economic Affairs and relating to alternative forms of finance will broaden the supply of finance. The IND is responsible for the admission scheme for start-up entrepreneurs and the self-employment scheme. This means that the IND actually explains and provides information about these sche-mes.

The Netherlands has no specific agreements with third countries on attracting entrepre-neurs from third countries. The Netherlands does have a Friendship Treaty with the United States of America and Japan and international free-trade agreements have been concluded with a number of countries, based on which immigrant business owners who want to be granted a residence permit in the Netherlands are not checked against the

12 Parliamentary Papers II 2013-2014 31311, no. 105.

13 More information can be found at http://www.rijksoverheid.nl/nieuws/2014/09/16/prinsjesdag-2014-versterken-

economische-groei.html

14 http://www.government.nl/news/2014/12/08/neelie-kroes-appointed-special-envoy-for-startups.html

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points system.15 This also applies to Community citizens, citizens of the European Union and European Economic Area and citizens of Switzerland, long-term residents of the European Community and third-country nationals having Turkish nationality (under the EEC-Turkey Agreement - Association Decision 1/80, or the ‘Turkish Association Deci-sion’).16 17

An example of a measure to attract entrepreneurs from third countries is a reduction of application costs: third-country nationals must pay fees in order to apply for a residence permit. These fees are relatively low for start-up entrepreneurs.

Conditions for admission and residenceBefore entrepreneurs from third countries are admitted to the Netherlands, they must, just like immigrant investors, meet several conditions. Here, a distinction is made between immigrant business owners and start-up entrepreneurs.

Information about admitting entrepreneurs from third countries to the Netherlands can be found on the websites of the Immigration and Naturalisation Service, the Nether-lands Enterprise Agency, Expat Centres and the Chamber of Commerce. The Ministry of Security and Justice and the Ministry of Economic Affairs are developing a communica-tion strategy for the admission scheme for start-up entrepreneurs from third countries.

Self-employment schemeIn order to qualify for the self-employment scheme, the enterprise must be registered with the Chamber of Commerce and the third-country national must submit a business plan showing his or her experience. The third-country national must also submit a copy of a document showing that the third-country national has the necessary permits in order to practice a profession or operate a business. An example is a registration in the BIG register.18 This document must have been issued by a competent Dutch authority. If the third-country national has/had an enterprise in the country of origin, he or she must also submit a copy of the deed of incorporation and the articles of association of the enterprise.

Business planThe third-country national must be the owner or co-owner and be demonstrably active in the enterprise. This must be evidenced by the business plan and the registration with the Chamber of Commerce. The allowed legal forms are one-man businesses, general partnerships and private limited liability companies. Branches of an existing foreign

15 See Chapter 2.3 of this report for more information.

16 Further definition of these terms: https://kdw.ind.nl/KnowledgeSessie.aspx?restart=true&knowledge_id=MWOEU_

Burgers&jse=1

17 Agreement EEC-Turkey - Association Decision 1/80: http://www.kruispuntmi.be/sites/default/files/associatiebesluit_2-76_

turkije_-_eu.pdf

18 The BIG register is the registration of professions under the Individual Healthcare Professions Act. The BIG register

tries to monitor the quality of healthcare and to provide clients with information about the powers exercised by a care

provider. That is why several groups of care providers must register in the BIG register. The quality requirements under the

Individual Healthcare Professions Act also apply to care providers holding a foreign diploma: http://www.rijksoverheid.nl/

onderwerpen/werken-in-de-zorg/registratie-in-big-register-van-beroepen

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enterprise are also possible, within all sectors, with the exception of the prostitution sector.

The enterprise’s details, including name and location, are required for the registration with the Chamber of Commerce. It should also be indicated if it concerns an existing or new branch, together with the details of this branch. These branch details include trade names, a description of the business activities, services and/or products, the parties purchasing these services and/or products, the address details and the number of jobs within the organisation. The third-country national must also take up residence in the Netherlands.

For the purpose of the self-employment scheme, details must also be provided about the background of the entrepreneur, specifications on the product or service, a market ana-lysis, pricing policy, the organisation and financing. This must also be properly substan-tiated. The business plan is checked within two months.

Points system for immigrant business ownersAs already indicated earlier, the IND assesses, based on a recommendation of the Nether-lands Enterprise Agency (RVO), the economic added value of the enterprise for the Netherlands. They use a points system for this purpose. The points system serves as a basis for assessing whether admitting the third-country national serves any interests of the Netherlands and falls under the responsibility of the Ministry of Economic Affairs. Third-country nationals who, as asked, can contribute to our economy in terms of high-quality knowledge and in the form of entrepreneurship obtain, as a rule, a high score for the innovativeness component. Enterprises operating in one of the top sectors discussed above are also given many points for this.

For the purpose of the self-employment scheme, a distinction is made between personal experience, a business plan with certain contents and the added value for the Nether-lands. A total maximum score of 300 points can be obtained for the components jointly. A minimum score of 30 points must be obtained for each component. At least 90 points are required for a positive recommendation. So in principle, at least 30 points must be scored for all three components. If a highly educated entrepreneur has already obtained the minimum number of 90 points for the ‘personal experience’ and ‘business plan’ com-ponents, but fails to obtain the minimum number of 30 points for the added value for the Dutch economy, a positive recommendation may, however, still be issued.

In order to assess if admission will serve essential interests of the Netherlands, the IND asks the other ministries for advice. In case of an artist, the Minister of Education, Cul-ture and Science will issue a recommendation to the IND, while a sports teacher will be assessed on the basis of a recommendation from the Minister of Health, Welfare and Sport. If it concerns practising a profession or operating a business on a self-employed basis, the IND will ask the Minister of Economic Affairs for advice.

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Start-up entrepreneursA step-by-step plan and a reliable and expert facilitator are required for the purpose of the second scheme, the scheme for start-up entrepreneurs. The Netherlands Enterprise Agency (RVO) advises the IND on any admission. The RVO gives advice on the step-by-step plan of the start-up entrepreneur and the track record of the facilitator. A positive recommendation from the RVO is a condition for the IND to grant the residence permit.

So start-up entrepreneurs need not submit a business plan, but they do have to submit a step-by-step plan. In principle, the Netherlands Enterprise Agency (RVO) will advise the IND on the added value for the Dutch economy within two weeks.

Other conditionsNo minimum educational level is required for both schemes. For the purpose of the self-employment scheme, however, more points are awarded if a person is highly educated. Some types of enterprises are, however, subject to other conditions. If a third-country national wants to work as a physician, for example, his diplomas and a registration in the BIG register will be required. The same applies to financing: no minimum capital is required, but financing will result in points being awarded in the points system for the self-employment scheme. Moreover, the activities to be performed by immigrant busi-ness owners must serve essential interests of the Netherlands. There is no requirement for having a command of the Dutch language. A command of the Dutch language and any affinity with the Netherlands will, however, result in additional points for immi-grant business owners.

A few standard conditions that apply to all third-country nationals are the obligation to undergo TB screening within 3 months and to take out healthcare insurance. They must also register in the Persons Database. The Immigration and Naturalisation Service will also check if the third-country national poses a danger to public order or national secu-rity.

Residence documentIf an entry visa is required in order to enter the Netherlands, the Netherlands or, as the case may be, the Dutch representation abroad will, just as with immigrant investors, first issue a regular provisional residence permit (MVV). After their entry into the Nether-lands, entrepreneurs from third countries can go to the IND to collect their residence permit. Residence documents are issued at one of the IND desks.

If no entry visa is required, the Netherlands will issue a temporary residence permit directly. An MVV, our version of the long-stay visa, is valid for 3 months.

A third-country national qualifying for the self-employment scheme will be granted a residence permit to work on a self-employed basis. This residence permit will be valid for two years, after which the third-country national can apply for an extension. If the

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extension is approved, the period of validity will be five years. In order for the period of validity of a residence permit to work on a self-employed basis to be extended, third-country nationals must demonstrate that they meet the means requirement.

Start-up entrepreneurs are given one year to start up their business. They will be given a residence permit for one year, after which the start-up entrepreneurs can move on to the self-employment scheme. In this case, too, the conditions for the points system must be met. If the residence permit is granted, this will also be valid for two years, after which it can be extended for five years under the above conditions.

Other conditions for extension are that the enterprise must still be registered in the commercial register of the Chamber of Commerce when the residence permit is exten-ded. So the enterprise may not have gone into liquidation or been granted a suspension of payments. Moreover, the IND may, in case of an application for an extension and within the context of enforcement, check the commercial register of the Chamber of Commerce to see if the enterprise is still active. An application for an extension must also include proof of payment of taxes and contributions over the past years.

Advantages for entrepreneursNo specific benefit schemes apply to entrepreneurs from third countries. However, start-up entrepreneurs from third countries may, just as Dutch start-up entrepreneurs, make use of the credit arrangements and grants from the Ministry of Economic Affairs and qualify for benefits from the Dutch Tax and Customs Administration. Just as Dutch entre-preneurs, entrepreneurs from third countries also qualify for the relief for new busines-ses and the entrepreneur’s allowance. They will only qualify for the entrepreneur’s allo-wance if their enterprise generates a profit. They are not allowed to rely on social assis-tance.

Living in the NetherlandsEntrepreneurs from third countries can bring their family members to the Netherlands under the normal conditions for family reunification. Immigrant business owners are allowed to work on a self-employed basis, but will require a work permit if they want to work in paid employment. Family members of entrepreneurs are given the same employ-ment status. Initially, no civic integration requirements will be set on immigrant business owners or their family members. Only if they want to apply for a permanent residence permit or want to become a Dutch citizen will the civic integration requirement apply and will they have to sit a civic integration examination. After having had a temporary residence permit for five years, third-country nationals and their family members can become Dutch citizens. For this, they are subject to the same conditions as all other third-country nationals.

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2.3 Policy within the context of international trade

Apart from the national policy on admitting third-country nationals for business purpo-ses, the free-trade agreements within the context of the World Trade Organization (WTO), bilateral free-trade agreements and association agreements contain provisions on the admission of persons to the Netherlands within the context of international trade.19

The provisions on admitting persons to the Netherlands within the context of internati-onal trade speak of employees from third countries who want to come to the Nether-lands on an occasional basis or for a short period and employees from third countries who want to gain temporary access to the Dutch labour market.

Policy for businesspersons from third countries who want to come to the Netherlands on an occasional basis or for a short period Businesspersons from third countries who want to come to the Netherlands on an occa-sional basis or for a short period are:

• business visitors who are responsible for setting up a business in the Netherlands;20 or

• business visitors who come to the Netherlands to hold business meetings or to con-clude contracts with businesses and institutions. They come to the Netherlands from another country as representatives of a company.

Business visitors are not allowed to conduct any direct transactions with the public and are not allowed to receive any remuneration.

Entry into the NetherlandsBusiness visitors must apply for a Schengen visa. The Orange Carpet visa programme has been set up for the international business sector. This programme is meant for compa-nies that have business relationships with companies in the Netherlands and whose employees have to travel to the Netherlands on a regular basis. Employees of companies that are allowed to participate in the Orange Carpet visa programme can apply for visas via a simplified and accelerated procedure.

Orange Carpet can offer many advantages when it comes to the granting of visas. Depending on local circumstances, the use of the Orange Carpet may differ for each application location. Generally, Orange Carpet applicants are facilitated through, for example: the issue of multiple entry visas with a period of validity of several years; wai-ver of the obligation to appear in person (all applicants must appear once every five years for the purpose of supplying biometric data); option to file an application without an appointment or during separate opening hours; VIP desk; submission of fewer sup-porting documents and accelerated issue.

19 Free-trade agreements providing for temporary mobility of persons have been concluded with the following countries:19

The CARIFORUM countries (Treaty Series 2009, 18) Antigua and Barbuda, the Bahamas, Barbados, Belize, Dominica, the

Dominican Republic, Grenada, Guyana, Haiti, Jamaica, Saint Lucia, Saint Vincent and the Grenadines, Saint Kitts and Nevis,

Suriname and Trinidad and Tobago; South Korea (Treaty Series 2011, 62); Peru and Colombia (Treaty Series. 2012, 178);

Central America (Treaty Series 2012, 163); Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama.

20 Establishment of smaller businesses will be detailed hereinafter

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For business visitors, the maximum duration of stay is 90 days during a 12-month period.21 The Ministry of Foreign Affairs is responsible for the issue of business visas and for pro-moting the Orange Carpet policy. Visas can be applied for to the Dutch representation abroad.

Labour market accessDutch legislation provides that no work permit is required if only a limited number of activities are performed in the Netherlands and if these activities are performed on an occasional basis or for a short period, such as concluding contracts with businesses and institutions or holding business meetings.22

The Ministry of Social Affairs and Employment is responsible for the Labour Act for Aliens (Implementation) Regulations, which state that business visitors who come to the Netherlands to hold business meetings or to conclude contracts with businesses and institutions do not require a work permit.

Policy for businesspersons from third countries who want to gain temporary access to the Dutch labour market Apart from business visitors who want to come to the Netherlands on an occasional basis or for a short period, policy is also in place for businesspersons from third countries who want to gain temporary access to the Dutch labour market. Here, too, the free-trade agreements within the context of the World Trade Organization (WTO), bilateral free-trade agreements and association agreements contain provisions on admitting persons to the Netherlands within the context of international trade.

The various functions and the related conditions under which a work permit or single permit can be issued under free-trade agreements are mentioned below. The functions are:

• Intra-corporate transferees,

• Independent professionals,

• Contractual service providers,

• Graduate trainees,

• Establishment of smaller businesses.

Intra-corporate transferees Intra-corporate transferees are third-country nationals who are temporarily transferred to the Netherlands by their international employer. Here, a distinction is made between 1) managers and 2) specialists.

The policy on labour market access for the intra-corporate transferee scheme has been laid down in the Labour Act For Aliens (Implementation) Regulations.23

21 Division 52 of the 2014 Labour Act for Aliens (Implementation) Regulations.

22 Article 1(1)(a) of the Labour Act for Aliens (Implementation) Decree.

23 Division 52 of the Labour Act for Aliens (Implementation) Regulations.

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Intra-corporate transferees who want to work in the Netherlands must have been an employee or partner, not being a majority shareholder, of a legal entity from a contrac-ting party for at least one year and be temporarily transferred to a company in the Netherlands. This also includes subsidiaries, branches and branch offices. They are allo-wed to stay in the Netherlands for no more than three years and must belong to one of the following categories: managers or specialists.

1. A manager is a person holding a senior position in a company, who is primarily res-ponsible for managing the establishment, including the person:

a) directing the establishment or a department or sub-division thereof;b) supervising and controlling the work of other supervisory, professional or managerial

employees;c) having the authority personally to recruit and dismiss employees or recommend

recruiting, dismissing or other personnel actions.

2. A specialist is a person working within a company who possesses special knowledge essential to the establishment’s activities, research, technical work or management. In assessing such knowledge, account will be taken not only of knowledge specific to the establishment, but also of whether the person has a high level of qualification referring to a type of work or trade requiring specific technical knowledge, including membership of an accredited profession

Intra-corporate transfereesThe Netherlands Employees Insurance Agency (UWV) sets a sales criterion with respect to the company’s size or the complex of companies.

A manager must hold a position at higher professional education level or higher and earn a gross monthly salary amounting to at least the salary for highly skilled migrants aged 30 and older24 as referred to in Article 1d(1)(a), under 1°, of the Labour Act for Aliens (Implementation) Decree.25

Specialists must also hold a position at higher professional education level or higher, the transfer must take place in connection with the transfer of specific knowledge and tech-niques and the remuneration must be a gross monthly salary at least equal to that of a highly skilled migrant over 30 years of age, as referred to in Article 1d(1)(a), under 1°, of the Labour Act for Aliens (Implementation) Decree.

Admission to the NetherlandsEmployers who want to get persons from outside the EU to the Netherlands for work can apply for a single permit (gecombineerde vergunning voor verblijf en arbeid, GVVA). Third-country nationals from third countries require a single permit if they want to stay in the Netherlands for more than three months.

24 As of 1 January 2014, the gross monthly salary for a highly skilled migrant younger than 30 years of age is € 2968 per month and

€ 4048 per month for a highly skilled migrant over 30 years of age.

25 Division 24 of the Labour Act for Aliens (Implementation) Decree.

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An employer will, on behalf of an employee, apply to the Immigration and Naturalisa-tion Service (IND) for a residence permit for work purposes. In reply to this application, the IND will ask the Netherlands Employees Insurance Agency (UWV) for advice. Only in case of a positive recommendation will the IND grant the application for a single permit.

Intra-corporate transferees are admitted within the context of promoting international trade contracts. These free-trade agreements provide that a work permit for these cate-gories can be issued without a labour market test having to be performed. The UWV will take this into account when assessing the application for a work permit.

Independent professionals (IP)Under Dutch legislation, ‘independent professionals’ fall under the category of ‘immi-grant business owners’.

Admission to the NetherlandsIndependent professionals must apply for a Schengen visa if their stay will be shorter than 3 months. The Dutch representations abroad are authorised to issue Schengen visas.

If they will be staying for more than 3 months, independent professionals must have a residence permit to work on a self-employed basis. The conditions for this are described in paragraph 2.2.

Admission to the labour marketAdmission to the labour market depends on the duration of the assignment. If the stay will last less than 3 months, a Schengen visa must be applied for.

If the stay will last longer than 3 months, independent professionals must have a resi-dence permit to work on a self-employed basis. During the application procedure, the Netherlands Enterprise Agency (RVO) will assess the added value for the Dutch economy on the basis of a points system, checking the business plan, among other things. Another condition is that the enterprise registers with the Chamber of Commerce. This admission scheme is actually meant for immigrant business owners who want to establish in the Netherlands and not so much for independent professionals carrying out a temporary assignment here. No work permit is required.

Contractual service providersWithin the context of international service provision, companies can have their own staff work in the Netherlands, for the purpose of performing a certain service. Contrac-tual service providers are third-country nationals who do so on a temporary basis.

Admission to the NetherlandsEmployers who want to get persons from outside the European Union to the Nether-

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lands for temporary work can apply for a single permit (gecombineerde vergunning voor verblijf en arbeid, GVVA).

This process can be compared to the intra-corporate transferee scheme.

An employer will, on behalf of an employee, apply to the Immigration and Naturalisa-tion Service (IND) for a residence permit for work purposes. In reply to this application, the IND will ask the Netherlands Employees Insurance Agency (UWV) for advice. Only in case of a positive recommendation will the IND grant the application for a single permit.

In drawing up this recommendation, the UWV takes account of the fact that free-trade agreements provide that a work permit can be issued for businesspersons who come to the Netherlands within the context of international trade, without a labour market test having to be performed.

Contractual service providers are allowed to stay in the Netherlands for 12 out of 24 months.26

Admission to the labour marketIn order to be admitted to the Dutch labour market as a ‘contractual service provider’, the following conditions must be met:

1. The contract for the provision of services does not exceed a term of twenty-four months, and was concluded after an open tender procedure or a public announce-ment to conclude such contract, if this follows from Dutch law or the law of the Euro-pean Union;

2. The aforementioned persons belong to the permanent staff of the relevant foreign employer and have performed the work to which the contract for the provision of services relates for more than one year in this employer’s employment;

3. The duration of stay is limited to the term of the contract, with a maximum of twelve months during a 24-month period;

4. The aforementioned persons will only perform the work for which the work permit was issued;

5. The number of staff members performing the contractually agreed work for the legal entity will not exceed the number of persons reasonably required for the execution of the contract;

6. The relevant staff members have completed a university degree programme and have three years’ professional experience in the relevant field of work27, and


27 If citizens of the CARIFORUM countries work as a model, chef or work in the culture sector (other than radio and television),

no university degree programme can be demanded. However, a compulsory (or equivalent) training course may be

demanded.

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7. The relevant staff members meet the professional requirements set in the Nether-lands on practising this profession.

Graduate trainees (GT)Apart from managers and specialists, it is also possible to transfer trainees to an esta-blishment in the Netherlands, in the context of career development or a training course focusing on business techniques or methods.

Graduate trainees are admitted within the context of an intra-corporate transfer with respect to promoting international trade contracts. The policy for third-country natio-nals who want to gain access to the Dutch labour market as a trainee under the intra-corporate transferee scheme has been laid down in the Labour Act for Aliens (Imple-mentation) Regulations.

Admission to the NetherlandsThe procedure for admitting graduate trainees to the Netherlands is the same as for the general intra-corporate transferee scheme. An employer who want to get persons from outside the EU to the Netherlands for work can apply for a single permit (gecombi-neerde vergunning voor verblijf en arbeid, GVVA), after which the employer will apply to the Immigration and Naturalisation Service (IND) for a residence permit for work purposes. The IND will, in turn, ask the Netherlands Employees Insurance Agency (UWV) for advice. Only in case of a positive recommendation will the IND grant the application for a single permit.

As graduate trainees come to the Netherlands under the ICT scheme, a work permit can be issued for them without a labour market test having to be performed. Moreover, they are allowed to stay in the Netherlands for a maximum period of three years. Admission to the labour marketA graduate trainee must have been employed by a company from the treaty country for at least one year. The receiving establishment in the Netherlands may be asked to sub-mit, in advance and for approval, a degree programme for the full duration of the stay, in order to demonstrate that a university degree programme is the purpose of the stay.28

Establishment of smaller businessesBusinesspersons from third countries who are responsible for setting up a business in the Netherlands may, as described above, come to the Netherlands as business visitors on an occasional basis or for a short period.

Admission to the NetherlandsThe same admission criteria that apply to intra-corporate transferees also apply to the establishment of smaller businesses. Employers who want to get persons from outside the European Union to the Netherlands for work can apply for a single permit (gecom-


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bineerde vergunning voor verblijf en arbeid, GVVA). For this purpose, an employer will, on behalf of an employee, apply to the Immigration and Naturalisation Service (IND) for a residence permit for work purposes. In reply to this application, the IND will ask the Netherlands Employees Insurance Agency (UWV) for advice. Only in case of a positive recommendation will the IND grant the application for a single permit. Businesspersons from third countries who come to the Netherlands in order to set up a business are admitted within the context of promoting international trade contracts. These free-trade agreements provide that a work permit for this category can be issued without a labour market test having to be performed. In drawing up its recommendation, the UWV takes this into account. However, businesspersons from third countries who want to set up a business in the Netherlands must also meet a few other conditions as referred to below (see admission to the labour market).

Businesspersons from third countries who come to the Netherlands to set up a business are allowed to stay in the Netherlands for no more than three years.

Admission to the labour marketThey are admitted to the labour market within the context of promoting international trade contacts and attracting new economic activities. The policy for this has been laid down in the Labour Act for Aliens (Implementation) Guidelines and has been detailed in the policy rules on the implementation of the Labour Act for Aliens (Establishment of smaller businesses).29

In order to start, change or expand business operations, a work permit can only be issued if a business plan drawn up by an expert agency shows that these business operations and the enterprise are sufficiently viable and economically feasible.30 The Netherlands Employees Insurance Agency (UWV) sets further rules on the contents of the business plan.

A work permit will initially be granted for one year, after which it will be assessed if the business operations are still conducted and if the company is viable. In order for a work permit to be issued, it must be demonstrated that the stay of company representatives in the Netherlands is necessary in order to start, change or expand business operations. The remuneration for company representatives is in accordance with market conditions. A work permit can be issued for a maximum of three years.

29 More information can be found at: http://wetten.overheid.nl/BWBR0007149/geldigheidsdatum_13-11-2014#II_Artikel8

30 In that case, with respect to a foreign national holding a key position within the company, it is possible to deviate from

Article 8(1), under (a), (b) and (c), of the Labour Act for Aliens.

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3 MEASURES FOR PREVENTING IMPROPER USE AND MISUSE

This chapter details the Dutch policy on preventing improper use and misuse of the regulations for admitting third-country nationals. A distinction is made between immi-grant investors and entrepreneurs from third countries. Moreover, the five categories of employees detailed in Chapter 2.3 are combined into the category of ‘other businessper-sons’. This category will also be discussed in a paragraph. Incidentally, Dutch legislation does not include any definitions of improper use or misuse. However, examples of this are given for each scheme.

3.1 Immigrant investors

An example of possible misuse of the scheme for immigrant investors is laundering money: investing criminal assets.

The origin of the assets used for the investment may not be mala fide. Immigrant investors must submit an opinion of a Dutch auditor stating that ‘there is no evidence that the origin of the assets is mala fide.’ As a standard, the Immigration and Naturalisa-tion Service also asks the Financial Intelligence Unit Netherlands (FIU) for information about the origin of the assets. As already indicated in Chapter 2.1, the FIU will investi-gate, also in the country of origin, if the third-country national is involved in any suspi-cious transactions. Moreover, everyone living in the Netherlands must register with the municipality. The municipality may inform the IND of this registration through digital data exchange. This is done when the third-country national moves house or deregisters from the Persons Database. This is especially relevant if the third-country national stays abroad longer than permitted: this may result in a withdrawal of his residence permit.

The same applies to the third-country national’s family members who were admitted to the Netherlands: the IND also receives these changes in digital form. If a third-country national submits a request for an extension of his residence permit, normally after 1 year, the IND will, as a standard, ask the FIU to conduct a new investigation.

If any improper use or misuse is detected, the IND may withdraw the residence permit of the immigrant investor and of his family members, because he no longer meets the con-ditions for residence. This means that he will have to leave the Netherlands. The IND may report a criminal offence if this is the case.

3.2 Immigrant business owners from third countries

An example of improper use of the self-employment scheme is when a self-employed person is in a relationship of authority with the party for whom he performs assign-

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ments on a self-employed basis. The Labour Act for Aliens applies in this case. The deter-mining factor for the assessment is whether the work is performed under the self-employed person’s own responsibility: if the self-employed person is able to determine his own working hours, works entirely at his own risk and payment is fully made to the self-employed person. In this case, there is no relationship of authority.

The Social Affairs and Employment Inspectorate (Inspectie Sociale Zaken en Werkgele-genheid, ISZW) of the Ministry of Social Affairs and Employment monitors compliance with the Labour Act for Aliens. Through enforcement activities, the Inspectorate sees to it that employers, organisations, employees and citizens comply with the various acts and decrees in the area of social affairs and employment.31 Examples of enforcement tools include warnings, suspensions, claims and orders subject to a penalty. The purpose of these tools is to terminate the violations as soon as possible. Moreover, official reports are drawn up and fines are imposed. Non-compliance may therefore have serious finan-cial consequences. This also has a preventive effect. The Social Affairs and Employment Inspectorate conducts its inspections on the basis of risk and external environment ana-lyses. The Inspectorate supervises and investigates wherever problems are the most per-sistent, so as to ensure the biggest effect. Sectors, businesses and organisations which entail a large risk of misuse or which fail to comply with the law closely, will be inspected more often than sectors and businesses which entail a smaller risk. Where necessary, firm action is taken. If the Social Affairs and Employment Inspectorate discovers any violati-ons, it will impose sanctions. These sanctions depend on the nature of the violation.32

In order to monitor compliance with the rules, the Social Affairs and Employment Inspec-torate cooperates with, among others, the Immigration and Naturalisation Service (IND) and the Netherlands Employees Insurance Agency (UWV). If the IND detects any signs of improper use when handling an application for an extension of a residence permit, nor-mally after 2 years, it will notify the Social Affairs and Employment Inspectorate. The IND does not perform any interim checks, unless in case of any signs of misuse. An example is a ‘relocation of the principal residence’, if a third-country national stays abroad longer than permitted.33 As regards supervision and compliance, the Labour Act for Aliens also provides that administrative bodies are allowed to exchange data. The authorities work together closely: in various ways and on various levels, they exchange information about administrative enforcement. If it is necessary to involve the Public Prosecution Service with respect to criminal proceedings, other laws and regulations apply to the exchange of information.

Just like immigrant investors, immigrant business owners may lose their residence per-mit in case of any improper use or misuse. Moreover, just like immigrant investors, immi-grant business owners have an obligation to provide information. This means that immi-grant business owners are obliged to inform the IND of any changes relevant to their residence permit. If a self-employed person fails to do so, he may be fined.

31 http://www.inspectieszw.nl/onderwerpen/toezicht_en_handhaving/handhavingsaanpak/instrumenten_inspectie_szw/

index.aspx

32 http://www.inspectieszw.nl/onderwerpen/toezicht_en_handhaving/handhaving_en_sancties/

33 http://www.kroesadvocaten.nl/nl/nieuws/kennismigrant-verplaatsing-hoofdverblijf

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3.3 International trade

Employing a person contrary to the Labour Act for Aliens constitutes a violation. This is also the case if an employer has a permit (work permit or single permit), but this permit becomes valid at a later point in time. So the third-country national is found working while the permit is not yet valid. The employer may be fined for this (not the third-country national). The other consequences for improper use are, however, less serious: under the orange carpet policy, for instance, the only consequence is that businesses are removed from the register if they appear to make improper use of the scheme.

The Immigration and Naturalisation Service and the Netherlands Employees Insurance Agency are charged with monitoring compliance with the policy. The Social Affairs and Employment Inspectorate (SZW Inspectorate) is responsible for checking illegal employ-ment and enforcing the Labour Act for Aliens.

Just as with entrepreneurs from third countries, the regulations provide that informa-tion be exchanged, solicited as well as unsolicited, between administrative bodies for the purpose of monitoring and enforcing the policy. As regards supervision and compli-ance, the Labour Act for Aliens provides that administrative bodies are allowed to exchange data. The authorities also work together closely. Just as with immigrant busi-ness owners, they exchange information about administrative enforcement in various ways and on various levels.

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4 POLICY EVALUATION; CHALLENGES AND OBSTACLES

This chapter focuses on the evaluation of the Dutch policy and also deals with challenges and obstacles. A distinction is made between immigrant investors and entrepreneurs from third countries. Moreover, the five categories of employees detailed in Chapter 3.3 are combined into the category of ‘other businesspersons’. This category will also be discussed in a paragraph.

4.1 Policy for immigrant investors

The Dutch scheme for immigrant investors entered into force on 1 October 2013. As planned, the scheme will be evaluated after one year. Preparations for the evaluation have started. That is why no report is available yet.However, as objections were expressed (by the business sector and intermediaries for potential immigrant investors), among other things, the scheme was already adjusted before the start of the evaluation.34 Since 1 June 2014, the possibilities for investment have been extended with the options to invest in a contractual joint venture, a partici-pation fund and a seed fund in formation. Moreover, on 1 June 2014, the minimum residence period was changed from a minimum of 6 months per year to a minimum of 4 months per year.

Other adjustments implemented on 1 June 2014 are:

• Evidence to be submitted by immigrant investors within the context of their invest-ment in the relevant funds are specified in the Aliens Act Implementation Guidelines.

• Immigrant investors need not sit the Civic Integration Examination abroad and the status of their right of residence is changed into non-temporary. After five years of residence, they may opt to apply for Dutch citizenship or a permanent residence per-mit.

• The conditions that applications for extension of the residence permit of immigrant investors must meet are clarified.

On the basis of the above-mentioned changes, the conclusion can be drawn that the policy for attracting immigrant investors was capable of improvement at first. That is why the time immigrant investors are allowed to spend abroad and the conditions they must meet in order to qualify for a residence permit were changed.

Supply and demandSo far, no third-country nationals have been allowed under the scheme for immigrant investors.35 However, people appear to be interested in the scheme for immigrant investors, but no actual applications are filed. Since the scheme has entered into force,

34 http://www.everaert.nl/nl/nieuws/21-nieuws-particulieren-nl/295-belangrijke-update-toelatingsregeling-voor-vermogende-

vreemdelingen

35 https://ind.nl/organisatie/nieuws/Paginas/Toelatingsregeling-buitenlandse-investeerders.aspx

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only two people have filed an application for a regular provisional residence permit (MVV) as a immigrant investor. No applications have been filed yet for a residence per-mit as immigrant investors without an entry visa or a change to a residence status. However, the scheme only entered into force in 2013, so it is too early to draw conclusi-ons based on the available data.

Challenges for this policyImmigrant investors who want to come to the Netherlands need an auditor’s opinion. This opinion given by a Dutch auditor is a point for attention. Even though the opinion does not offer any guarantees (‘there is no evidence that the origin of the assets is mala fide’), auditors fear that they can be held liable if it turns out that the origin of the assets is mala fide. Further consultations will be held with the Netherlands Institute of Charte-red Accountants (Nederlandse Beroepsorganisatie van Accountants, NBA), possibly also consultations with several accountancy firms.

Moreover, discussions with representatives of the target group show that the limited duration of the initial residence permit and the uncertainty as to whether residence can be continued after one year is a point for attention.

No evaluation reports or other written views relevant for immigrant investors are avai-lable at present. During general information meetings and discussions with representa-tives of the target group on potential investment plans, the below objections and wis-hes were expressed:

Objections:

• An immigrant investor must take up residence in the Netherlands.

• An immigrant investor must stay in the Netherlands for at least 4 months a year.

• The short period of validity of the residence permit to be granted (1 year).

• The risk that the residence permit is not extended after one year.

• The civic integration condition (proof of passing the civic integration examination) for a permanent residence permit and also for naturalisation.

• The requirements set on the auditor’s opinion.

• Some persons object to the payment of money into a bank account in the Nether-lands. A third-country national who does not yet have a residence permit is unable to open a bank account in the Netherlands. Payments into a bank account of a third party in the Netherlands are not trusted (certain nationalities do not trust a notary, not even outside the country of origin).

Wishes:

• Immigrant investors want to be granted a permanent residence permit straight away and, preferably, want to be granted Dutch nationality straight away.

• The possibility of being granted a residence permit when investing in immovable property.

33


• The possibility of being granted a residence permit when investing in governmentbonds.

• The possibility of being granted a residence permit when investing in (purchasing)shares.

4.2 Policy for immigrant business owners from third countries

The action programme for ambitious entrepreneurship will assess what is needed in order to attract entrepreneurs. Partly as a result of this, an admission scheme for start-up entrepreneurs was set up, because innovative start-up entrepreneurs are of paramount importance to our economy and they have great potential to contribute to Dutch pros-perity and competitiveness. It is not a matter of course that start-up entrepreneurs choose the Netherlands: the country that start-up entrepreneurs choose depend, among other things, on the innovation climate in that country and the presence of acceleration programmes and capital. Start-up entrepreneurs are popular: a number of countries has or is drawing up specific immigration legislation in order to attract and retain them. The Netherlands participates in this ‘battle for talent’.36

Some entrepreneurs falling in the top sectors used to be rejected. That is why the points system was adjusted and the rules applying to them were eased. This is particularly important for immigrant business owners in the creative, medical and ICT sector, because most immigrant business owners work within these sectors.37 Moreover, the 2013 EMN report titled Attracting highly qualified and qualified third-country nationals provides a lot of information about attracting entrepreneurs from third countries.38 An impor-tant conclusion of this report is that it is difficult to identify the effects of the measures taken by the Dutch government to attract highly-qualified labour migrants: on the one hand, researchers conclude that the Netherlands is much in favour among international talent; on the other hand, the conclusion is drawn that the share of highly-qualified immigrants is significantly lagging behind compared to other OECD countries. So a paradox exists: highly-qualified migrants find the Netherlands attractive and the Netherlands is inviting them, but still they do no not come. Since the introduction of the highly-skilled migrants scheme, however, the number of third-country nationals admit-ted under this scheme has been increasing every year. Other schemes for attracting highly-qualified migrants appear to be reasonably effective as well. A comment that is made in the report is that a relaxation of the admission policy concerning this group of migrants should also be supported by policy in other sectors. For successful policy is not limited to attracting this target group alone, but also focuses on retaining this target group.

The start-up scheme will only enter into force on 1 January 2015, so it is not possible to evaluate this scheme now. This will be done when the scheme has been in force for two years. The evaluation will assess, among other things, how often start-up entrepreneurs make use of the scheme, how many start-up entrepreneurs successfully move on to the

36 More information about the start-up scheme via: http://www.rijksoverheid.nl/documenten-en-publicaties/

brieven/2014/03/19/kamerbrief-start-up-regeling.html

37 http://www.rijksoverheid.nl/nieuws/2013/07/31/buitenlandse-ondernemers-makkelijker-aan-de-slag-in-nederland.html

38 EMN study (2013). ‘Het aantrekken van hooggekwalificeerde en gekwalificeerde arbeidsmigranten’.

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self-employment scheme and whether there are any indications of misuse of the scheme.39

Supply and demandDuring the period between 2009 and 2013, only few people took advantage of the pos-sibility of entering the Netherlands with a regular provisional residence permit (MVV). First of all, only a few applications were filed, varying from 20 to 40 per year. Moreover, less than ten applications for an MVV were granted in each of the 4 years.

The below graph shows the applications for a residence permit to work on a self-employed basis during the period between 2009 and 2013, divided into the number of applications and the decisions that were made. A distinction is made between entrepre-neurs who came to the Netherlands with a residence permit to work on a self-employed basis and entrepreneurs who used to reside in the Netherlands under a different resi-dence status and changed this residence status into a residence permit to work on a self-employed basis. Moreover, a division is made between applications that were gran-ted and applications that were rejected or withdrawn.

This graph shows procedures: it could be that persons made use of several procedures. An example of this is an entry into the Netherlands for another purpose of residence (such as a regular residence permit) and, after arrival, changing this into a residence permit to work on a self-employed basis.

39 https://zoek.officielebekendmakingen.nl/kst-31311-105.html

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What is striking is that the population is increasing, the peak year being 2012. In 2012, 1,130 applications for a residence permit to work on a self-employed basis were filed, while only 860 applications were filed in 2011. However, the graph shows an upward trend from 2009 onwards. This increase from 2009 onwards may be connected with the introduction of the points system to assess the added value for the Dutch economy in 2006.40 It is, however, difficult to assess this connection, because no figures are available for the period between 2006 and 2009. A possible explanation for the large increase in 2012 and compared to 2011 can be found in the decision of the Administrative Jurisdic-tion Division of the Council of State of 29 September 2010, stating that the above-men-tioned points system is contrary to the stand-still clause in the Turkish Association Deci-sion 1/80 when it comes to the knowledge and innovation parts. This means that the IND is not allowed to use the points system as an assessment framework for Turkish nationals who want to work in the Netherlands as a self-employed person. So Turkish immigrant business owners must demonstrate in another way that their business makes a positive contribution to the Dutch economy, the so-called essential interests of the Netherlands.41 However, only a small percentage of these applications is granted. This could indicate that no essential interests of the Netherlands are served by the intended businesses of immigrants. In 2013, these numbers declined: the number of applications decreased to 920, while the number of applications granted went down from 230 to 150. The number of rejections and withdrawals decreased from 790 in 2012 to 330 in 2013. A possible explanation for this decrease in applications can be found in the amendment to the Civic Integration Act on 11 September 2012.42 This amendment placed the responsibility for civic integration with migrants themselves instead of with the government. Since 1 January 2013, migrants have had to arrange for participation in and financing of the civic integration programme themselves.

The number of people already residing in the Netherlands and changing their residence status into that of a self-employed person varies per year. Since 2011, however, the num-ber appears to have gradually increased. The period between 2011 and 2013 shows a slight increase: in 2011, only 40 changes to residence status were registered, while this number increased to 100 changes in 2013.

What is striking is that only a limited number of residence permits for immigrant busi-ness owners was granted: in the peak year 2012, 1,130 immigrant business owners filed an application for a residence permit to work on a self-employed basis. However, 2012 and 2013 did not show an increase in the number of applications granted. This could indicate that the applicants do not serve any essential interests of the Netherlands, or that Dutch admission policy is (too) strict.

40 Letter to the House of Representatives about the introduction of the points system: https://zoek.officielebekendmakingen.

nl/kst-29696-3.html

41 Decision 2009092051/1/V1: https://kdw.ind.nl/KnowledgeSessie.aspx?restart=true&knowledge_id=MWOTurkseOnderdanen

EnHunGezinsleden&jse=1

42 Amendment to the Civic Integration Act: http://www.gemeenteloket.minszw.nl/binaries/content/assets/

Inburgering/2012-10-12/brief-Leers.pdf

36


Evaluation studiesThe Netherlands Foreign Investment Agency (NFIA) is part of the Netherlands Enterprise Agency, the implementing agency of the Ministry of Economic Affairs. The NFIA helps and gives advice to foreign companies in setting up and/or expanding their internatio-nal activities in the Netherlands. It also focuses on promoting the Netherlands abroad as a country with an attractive investment and business climate and plays an active role in maintaining this. In its annual evaluation report, the NFIA pays attention to the number of companies they attracted.

The above illustration comes from the 2013 NFIA annual report. 43 In 2013, the Nether-lands Foreign Investment Agency was active in 193 projects, in which a total of over five thousand new jobs were created. The period between 2009 and 2013 shows a slight increase in the number of projects: from 155 to 193, with a slight dip in 2012. Most of these projects are executed in cooperation with Asia and North America.

Moreover, Panteia has conducted a study evaluating the effects of attracting entrepre-neurs from third countries: the literature study titled Meer innovatie door buitenlan-ders? [More innovation through foreign migration?]. 44 The economic effects of immi-gration and the effects of foreigners on trade flows and innovation are researched, especially focusing on the effects of foreigners who are already established in the Netherlands and have set up a business.

This report shows the following conclusions:

• Higher educated foreigners and more diversity (different nationalities) have a posi-tive effect on innovation;

• Entrepreneurs from third countries increasingly resemble Dutch entrepreneurs and

43 More information about the year 2013 can be found at: http://www.nfia.nl/images/shared/RESULTS/BROCHURE_NFIA_

results2013_EN.pdf

44 Panteia (2013). Meer innovatie door buitenlanders?’. To be consulted via: http://www.ondernemerschap.nl/sys/cftags/

assetnow/design/widgets/site/ctm_getFile.cfm?file=A201214.pdf&perId=670

NFIA results 2013

193projects

8.436jobs

€1.658million

5.285 new jobs

2.920 retention jobs

231 outsourced jobs

37


innovations usually relate to product range and new target groups;

• Cultural diversity as a source for innovation is underused. As employees from third countries find themselves in the Dutch working system, their ‘being different’ will not stand out as much and potential innovations will hardly come about.

Moreover, only limited research was conducted into the policy of attracting highly-qua-lified workers based on other social problems. Relatively little attention is paid to this in the media and political debates. The (negative) attention paid to entrepreneurs mostly focuses on self-employed workers without personnel from Central and Eastern Euro-pean countries, with exploitation, misuse and unfair competition being the most impor-tant concerns.

Challenges for this policyThe Netherlands as the place to be for ambitious entrepreneurs is actively promoted in the Netherlands and abroad within the context of the ambitious entrepreneurship pro-gramme. This year, the government initiated an action programme for ambitious entre-preneurship in order to attract entrepreneurs from third countries. The aim is to create an ambitious and attractive business climate, to attract new start-up businesses and entrepreneurs from abroad, which will contribute to strengthening the Dutch economy. Start-up entrepreneurs often do not qualify for the self-employment scheme, because they do not (yet) have a detailed business plan or do not (yet) have sufficient start-up capital. The action programme for ambitious entrepreneurship will assess what is nee-ded in order to attract entrepreneurs. For example, it appeared that it is not always pos-sible for immigrant business owners to write a detailed business plan. Providing transpa-rent information and providing this information in English are essential points.45

4.3 Policy within the context of international trade

Only limited research was conducted into the policy to attract employees from third countries, who want to gain temporary access to the Dutch labour market within the context of international trade. Information about numbers of applications for a resi-dence permit is not available.

Challenges for this policyAs regards third-country nationals coming to the Netherlands for business purposes within the context of international trade, there seems to be a tension between, on the one hand, stimulating the knowledge-based economy and, on the other hand, pro-tecting the Dutch labour market. It is important to find a balance between the flexibility desired by the business sector in terms of mobility of its employees (as is the case with intra-corporate transferees) and the procedures that apply with respect to the work that is performed in the Netherlands by workers from third countries.

45 More information can also be found at http://www.eur.nl/fileadmin/ASSETS/fsw/Sociologie/expats/Ontheredcarpet_TR.pdf

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39


5 GOOD PRACTICES AND POINTS FOR IMPROVEMENT

5.1 Good practices

The Netherlands is trying to attract highly-qualified labour migrants by easing and sim-plifying admission rules. 46 The aim is to make the Netherlands more attractive by offe-ring immigration benefits for third-country nationals. Examples are the highly skilled migrants scheme, the orientation year for graduates, the highly educated migrants scheme and the self-employment scheme.47

As a clear and low-threshold procedure, the highly skilled migrants scheme is an example of a good practice in another sense as well. Students coming to the Netherlands as gra-duate trainees under the intra-corporate transferee scheme can be regarded as highly-skilled migrants. In order to be allowed to work in the Netherlands as a highly-skilled migrant, only the migrant’s salary is checked. Here, a distinction is made between per-sons under and over 30 years of age. The migrant’s educational level is not checked. In order to avoid any misuse, the salary must be in accordance with market conditions. This means that the salary to be paid is customary for the relevant position in the industry. Moreover, the following general requirements apply: the statutory employment condi-tions and working conditions must be met and at least the statutory minimum monthly wage must be paid, irrespective of the number of hours of work.

If an employer wants to bring a highly-skilled migrant to the Netherlands, the Immigra-tion and Naturalisation Service must have recognised the employer as a sponsor. As a result, the employer is granted certain rights, such as an accelerated admission proce-dure and permission to submit less documentary evidence than usual. The duties that the sponsorship involves include informing the migrant of admission and residence con-ditions and collecting and recording information about the migrant’s employment.

Another example of good Dutch practices is the active promotion of the Netherlands as host country. An example of this promotion is that the Ministry of Economic Affairs has set up the Netherlands Foreign Investment Agency (NFIA) in order to provide clear infor-mation to interested parties about entrepreneurship in the Netherlands.48 This has been done for 35 years and thousands of companies all over the world have been assisted in setting up an establishment in the Netherlands. NFIA has branches in Europe (HQ in The Hague and London), The United States of America (New York, Boston, Chicago, Atlanta, San Francisco), Asia (Tokyo, Osaka, Taipei, Shanghai, Beijing, Guangzhou, Seoul, Delhi, Mumbai, Singapore and Kuala Lumpur), the Middle East (Dubai, Tel Aviv), Turkey (Istan-bul) and Brazil (São Paulo).The Special Envoy ambassador, referred to in Chapter 2.1, can also be seen in this con-text. The Special Envoy ambassador is appointed in order to strengthen the internatio-

46 EMN study (2013). ‘Attracting highly qualified and qualified third-country nationals’.

47 Highly skilled migrants scheme monitor, divided into a qualitative and quantitative analysis. Available at www.ind.nl

48 www.nfia.nl

40


nal position of Dutch start-up businesses and growing businesses and to encourage foreign start-up businesses to establish in the Netherlands.

The Netherlands also has a clear focus on top sectors.49 The Netherlands belongs to the world’s twenty largest economies and would like to keep this position, for example by motivating start-up businesses from third countries to establish in the Netherlands, as already argued in Chapter 4.2 In order to remain part of the world’s top countries in economic and social terms, the Dutch government focuses on nine top sectors in parti-cular. Smart cooperation between businesses, researchers and the government is the key element here. By focusing on 9 top sectors, the Netherlands creates a priority for 9 indus-tries that promote or are able to promote the Netherlands on an international level. The top sectors are knowledge-intensive, export-oriented and can make an important con-tribution to solving social issues worldwide. Large enterprises and small and medium-sized enterprises in these internationally operating top sectors provide for prosperity and employment in the Netherlands. Through investments, the government wants to make full use of the earning potential of these top sectors and strengthen the Dutch competitiveness and economy.

5.2 Points for improvement

The Netherlands has developed extensive policy on attracting immigrant investors, as explained in Chapter 2.1. However, no-one has been admitted under this scheme yet since it was introduced on 1 October 2013. Moreover, the scheme, which was supposed to be evaluated after one year, has been relaxed in the meantime.50

A second lesson can be drawn from the admission scheme for immigrant investors. The government strongly focuses on preventing laundering of money whether or not obtained from crime. It does so, for example, by demanding an auditor’s opinion. Howe-ver, this auditor’s opinion also seems to be an important obstacle for third-country nati-onals in order to make use of this scheme. This results in the following dilemma: what is the correct balance between deterring investors with criminal assets and motivating honest investors to come to the Netherlands?

Finally, the initial residence permit that is issued to third-country nationals only has a limit duration: the residence permit for immigrant investors and start-up entrepreneurs is initially only valid for 1 year and a residence permit for entrepreneurs from third coun-tries is valid for 2 years. This creates uncertainty for migrants, who likely want certainty for a period longer than 1 or 2 years. For they run the risk that their residence permit will not be extended after this period, if they no longer meet the conditions set. Other con-ditions apply to other businesspersons, such as intra-corporate transferees. However, a requirement set on their stay in the Netherlands is that they only come to the Nether-lands on a temporary basis. It is therefore likely that they are less inclined to take up permanent residence in the Netherlands.

49 www.topsectoren.nl

50 More information can be found at http://www.everaert.nl/nl/nieuws/21-nieuws-particulieren-nl/295-111belangrijke-update-

toelatingsregeling-voor-vermogende-vreemdelingen

41


6 CONCLUSIONSThe ambition of the Netherlands to attract third-country nationals who want to come to the Netherlands for business purposes and actual practice are not mutually consistent (yet):

• So far, no third-country nationals have been admitted under the scheme for immi-grant investors yet.

• It also appeared that only few third-country nationals came to the Netherlands as immigrant business owners during the period between 2009 and 2013.

• Only little information is available about the number of businesspersons from third countries coming to the Netherlands within the context of international trade.

The Dutch scheme for immigrant investors entered into force on 1 October 2013. Prepa-rations for an evaluation of the scheme have been started. On 1 June 2014, a number of changes were implemented which mostly relate to the time an immigrant investor is allowed to stay abroad. The conditions to be met in order to qualify for a residence per-mit have also been adjusted. Moreover, the scheme was clarified on a number of points.

The Netherlands has two admission schemes for immigrant business owners: the self-employment scheme and a scheme for start-up entrepreneurs. The former scheme has already entered into force and the latter scheme will take effect on 1 January 2015. The Netherlands as the place to be for ambitious entrepreneurs is actively promoted in the Netherlands and abroad within the context of the ambitious entrepreneurship pro-gramme. Start-up entrepreneurs often do not qualify for the self-employment scheme, because they do not (yet) have a detailed business plan or do not (yet) have sufficient start-up capital. The action programme for ambitious entrepreneurship will assess what is needed in order to attract entrepreneurs. Some entrepreneurs falling in the top sec-tors used to be rejected, because they were unable to meet the criteria set by the points system. That is why the points system has been adjusted. This is particularly important for the creative, medical and ICT sector. The number of immigrant business owners coming to the Netherlands has slightly increased over the past few years, but the total number continues to be low.

So far, only limited research has been conducted into the policy for employees from third countries coming to the Netherlands within the context of international trade.

Active promotion of the Netherlands as host countryThe Dutch government tries to attract third-country nationals who want to come to the Netherlands for business purposes, and therefore actively promotes the Netherlands as host country. An example of this promotion is that the Ministry of Economic Affairs has set up the Netherlands Foreign Investment Agency (NFIA) in order to provide clear infor-mation to interested parties about entrepreneurship in the Netherlands. Moreover, the

42


Netherlands appointed a Special Envoy ambassador in order to enhance the internatio-nal position of Dutch start-up entrepreneurs in other countries. The ambassador also looks at opportunities for stimulating entrepreneurs from third countries to establish their business in the Netherlands.

43


ANNEX: DEFINITIONSWhere possible, this report uses the definitions of relevant terms listed in de EMN Asy-lum and Migration Glossary.51 The aim of the terms and definitions in this glossary deve-loped by the EMN is to improve the ability to compare information exchanged between EU Member States. In the cases in which the EMN Glossary does not provide a definition, the definition provided below is based on other relevant sources.

Third-country national: any person who is not a citizen of the EU within the meaning of Article 20(1) of the Treaty on the Functioning of the European Union (TFEU), and who is not a person enjoying the European Union right to free movement, as defined in Article 2(5) of the Schengen Borders Code.52

Regular provisional residence permit (MVV) or D-visa: A regular provisional residence permit (machtiging tot voorlopig verblijf or MVV) refers to the decision required by the Netherlands for a planned stay of more than three months. Some categories of third-country nationals are exempted from the obligation to apply for a regular provisional residence permit. These are, in any case, third-country nationals from Australia, Canada, Japan, Monaco, New Zealand, Vatican City, the United States of America and South Korea.

Immigrant investors: Third-country nationals complying with the criteria set by the Netherlands. They are admitted to the Netherlands in order to make a (substantial) financial investment in financial products or in a company, without being involved in the day-to-day activities or management of the company.

Entrepreneurs from third countries: Third-country nationals who comply with the crite-ria set by the Netherlands and who are admitted on the basis of a regular provisional residence permit (MVV) i) in order to set up a business and be involved in the manage-ment; ii) in order to take over one or more existing businesses and be involved in the management; iii) as immigrant business owners.

Start-up scheme: simple procedure for admitting innovative start-up entrepreneurs from outside the EU/EEA to the Netherlands.53

Intra-corporate transfer: Temporary secondment for professional or training purposes of a third-country national who, at the time of the application for the intra-corporate transferee permit, is residing outside the territory of the Netherlands and to which the third-country national is bound by a work contract before and during the transfer. The third-country national may also be bound to these purposes through a party belonging to the companies or group of companies which is established in the Netherlands and

51 EMN 2014. http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration_network/glossary/index_a_

en.htm

52 EMN study (2013). Mobiliteit van derdelanders binnen de EU. De situatie in Nederland.

53 Derived from the Letter to Parliament about the start-up scheme: http://www.rijksoverheid.nl/documenten-en-publicaties/

brieven/2014/03/19/kamerbrief-start-up-regeling.html

44


which, where applicable, explains the mobility between the receiving parties in one or more secondary member states. 54

Intra-corporate transferee: A third-country national who is residing outside the territory of the Netherlands at the time of the application for an intra-corporate transferee per-mit and who is subject to an intra-corporate transfer.55

Temporary movement of natural persons or Mode 4 Categories: Mode 4 is one of the four ways through which services can be supplied internationally under the General Agreement on Trade in Services (GATS). It concerns the provision of a service by a service provider of one party to the agreement because of the presence of natural persons of a party in the territory of the other party. It concerns the temporary movement of natural persons for the purpose of providing services.56

Other businesspersons: All categories falling under the Temporary movement of natural persons (or “mode 4” categories) who are admitted to the Netherlands on the basis of a short-term residence permit (less than 3 months), a Schengen C-Type visa or an MVV, for the purpose of doing business. This does not include immigrant investors or entrepre-neurs from third countries.

Residence permit: A permit issued by the Dutch government, which allows third-country nationals to legally reside in its territory, in accordance with the conditions of Article 1(2)(a) of Council Regulation (EC) Number 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals.

Short-term residence permit or Schengen C-Type visa: The authorisation or decision of the Netherlands required in order to enter the Netherlands for a planned stay in the Netherlands or various Member States for a maximum period of 90 days during a period of 180 days.57

54 Reference is made to http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/142571.pdf Article 3 b) of

Directive 2014/66/EU for more information

55 Reference is made to Article 3 c) of Directive 2014/66/EU for more information

56 The complete list of categories, admission criteria and duration of stay of the predefined six “Mode 4” categories has been

attached as Annex 2.

57 Visa Code as amended by Regulation (EU) No 610/2013


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INDIAC NL EMN NCP DECEMBER 2014

The European Migration Network (EMN) has been set up by the Council of the European Union. The EMN collects up-to-date, objective, reliable and where possible comparable information on migration and asylum. The EMN publishes reports on a variety of subjects in the fi eld of asylum and migration.The establishment of the EMN is consistent with the aim of the EU to establish an effective asylum and migration policy.

www.emnnetherlands.nl

The EMN was established via Council Decision 2008/381/EC of 14 May 2008 and is fi nancially supported by the European Commission.