FAQ for Japanese in the Netherlands | State Council verdict 2014
As a result of the State Council’s recent verdict, Shofukan and other organisations are receiving many questions from Japanese in the Netherlands regarding their status. Below, our lawyer Julien Luscuere answers the most important questions.
From the verdict of the Dutch State Council of December 24, 2014, it follows that Japanese no longer need a residence permit or work permit (tewerkstellingsvergunning or TWV) when staying or working in the Netherlands. They are now free to stay and work here, whichever way. Employers of Japanese workers can no longer be fined on the absence of a work permit.
Prior to this verdict the Japanese were as foreigners with a nationality from outside the European Union. For that reason, in most cases they needed a TWV, or an exemption on their residence permit, to be allowed to work in the Netherlands. Obtaining a TWV is strictly regulated in the Foreigners Work Law (Wet Arbeid Vreemdelingen or WAV). An employer who has people working in contrary to these rules can be severely fined.
Another consequence of the verdict is that the Immigration and Naturalisation Office (IND) will now have to reassess the legal status of Japanese, substantially as well as regards procedures. In what respects exactly this status will be revised, is unclear as of now. But in any case, it will become much easier for Japanese to settle and work in the Netherlands.
The verdict of the State Council is based on the 1912 Trade and Shipping between the Kingdom of the Netherlands and Japan (Japans Handelsverdrag or JHV) and the 1875 Dutch-Swiss Treatise. The JHV contains provisions giving Dutch and Japanese the right tot live and work in each other’s countries under the same conditions as the ‘most favored nation.’ Thus, if the Netherlands or Japan conclude a treaty with another country, its favoring rights also apply to Dutch or Japanese citizens respectively. The Dutch-Swiss Treatise is one of those treaties. Consequently, as every Swiss citizen has the right to live and work in the Netherlands under the same conditions as a Dutch citizen, the same conditions apply to the Japanese.
Moreover, the IND’s policy until May 2013 proves that Swiss citizens derive extra rights on top of the rights of EU citizens, based on the Dutch-Swiss treatise. In theory, these extra rights thus apply to Japanese citizens as well – who are therefore even better off than German or Belgian citizens.
The most important consequence is that no Japanese without work permit or suitable residence permit can be fined in any case, according to the State Council. Their employers don’t need to turn to the UWV to request a permit or to meet the notification duty. And because Japanese don’t need a visum, they can legitimately stay in the Netherlands for 90 days. The verdict thus directly implies huge improvements as regards short-term work.
As seen above, the Immigration and Naturalisation Office (IND) will now have to reassess the legal status of Japanese, in order to make it easier for them to live and work in the Netherlands. As of today (January 27, 2015), however, no adjustments have been announced. Policymakers have communicated that the verdict is under investigation. In ongoing TWV procedures, the UWV actually refuses to apply the verdict and still rejects TWVs, even though Japanese don’t need them any longer.
There are several options:
- Submitting an application for a residence permit ex art. 9 Vreemdelingenwet
This application comes closest to the status of Japanese being recognized as equal to that of the Swiss. But it also implies many uncertainties, as the procedure has little substantial and legal formalities. For that reason, it is not recommended to submit only this application, until the authorities or new jurisprudence shed more light on the procedure itself.
- Submitting an application for a limited period permit ex art. 14 Vreemdelingenwet
For this application, the residence claims of the Japanese citizen are assessed according to the national foreigners law. Before, Japanese were ‘regular’ third country citizens, the conditions being equal to those for non-Europeans. According to an earlier verdict of June 19, 2013, these conditions should already have been implemented. Unfortunately, after 1,5 year nothing in the rules has been adjusted, the IND seemingly ignoring that every judicial verdict must be complied with – especially by the government and its executive agencies. With the December 24, 2014 verdict, there is no longer any discussion as to the Wet Arbeid Vreemdelingen. It is expected that the government and the IND will reconsider the legal status of Japanese shortly, and adjust their regulations accordingly. Any consideration by the IND on the basis of old regulations will be nullified in appeal. Unfortunately, such procedures will still take unnecessary time, cost, and effort.
- Not submitting any application at all, but reporting to the municipal authorities for local registration
This is the procedure followed by Swiss and EU-citizens. Whereas the ‘regular’ foreigner must apply for a permit in order to prove he is legitimately staying in the Netherlands, under EU law – but also the Dutch-Swiss Treatise – the IND must prove that the residence permit of the Swiss or EU-citizen is no longer valid. As pseudo-Swiss citizens, Japanese citizens could now rely on this practice.
A citizen still has the obligation to register at the municipal authorities if he expects to stay in the Netherlands for longer than 4 of the 6 months to come. This registration is free of charge, and practical necessity in most cases, because it is this registration which generates the tax Burger Service Nummer (BSN), fiscally needed when working in the Netherlands. There is a chance, however, that municipal authorities will refuse registration of Japanese because they haven’t received any clear instructions by the IND. In that case, again, it is possible to object, and – if need be – to appeal.
As long as the regulations have not been changed, the IND will maintain the procedure charges mentioned in the Voorschrift Vreemdelingen. These charges can reach up to 1279 euro for an application as self-employed entrepreneur. In our view, charges may no longer exceed those paid by ‘nationals,’ i.e. Dutch citizens, such as a EU ID card. This charge, 53 euro, also applies to Swiss and EU-citizens, regardless the nature of their stay.
Nevertheless, we advise you to pay any charges right away, so as to avoid any delays or complications. This should be done together with an application letter for restitution. If this is rejected, you can object, and – if needed – appeal. If this is no longer feasible or desired, you can also file a complaint at the IND, and eventually, the Nationale Ombudsman. A complaint filed at the Japanese embassy might also increase diplomatic pressure on the Dutch government.
Current permits remain valid until they expire. Before expiration, it is recommended to make an application for extension, as long as there are no clear regulations or jurisprudence proving the opposite. If the permit is limited in any way, such as the condition of employment as a ‘kennismigrant,’ or under a TWV, the IND may be requested to adjust the extension accordingly. The safest way for this is to request a ‘wijziging beperking.’ The procedure is described above (application for a permit). As we have seen, it is also recommended to request restitution of any charges (see below).
Charges are a financial fee paid to the government in order to handle cost of an application. Until September 2, 2011, a request for restitution could be made, but in a recent Turkish case, the State Council has judged that an afterwards request is no longer possible. Consequently, the verdict based on the JHV has no direct implications for old, closed cases. Their results now have ‘legal force’ and judges will no longer consider the charges paid in those cases. New developments in jurisdiction will not entail revision of old cases.
Still, it is perfectly reasonable to file a complaint and request for restitution. On ‘moral grounds,’ the government should consider the obscurity in these procedures, for the JHV has not been translated into regulations so far. If this is dismissed, a complaint could be fled at the
Nationale Ombudsman. In most cases of the past, this has been successful, but of course, it is not a guaranteed procedure.
The Shofukan Foundation was established to promote cultural exchange between Japan and the Netherlands by organizing lessons, events, and initiatives such as the tea house Senshin-an. Evidently, individual advocacy is not a part of these goals, nor is the Foundation designed to handle these inquiries. Should you have any questions after reading the above, you might turn to specialized jurists like our lawyer Julien Luscuere. Please bear in mind, however, that such counseling may entail certain costs.