Does your organisation have a highly skilled migrant work for a company in which he or she has an interest? Then inquire thoroughly whether the highly skilled migrant is seen as self-employed. Is this the case? Then this person does not meet the conditions for the residence permit as a highly skilled migrant. And he or she must apply for residency for work on a self-employed basis. As a recognised sponsor you are responsible for carrying out this assessment properly.
The IND sees someone as self-employed if he or she is the director and (main) shareholder and
- has an interest of 25% or more in the enterprise; and
- is running entrepreneurial risks; and
- is able to influence their own salary.
This is prescribed in Section B6/2.5 of the Aliens Act Implementation Guidelines. In this situation, someone must have a residence permit for work on a self-employed basis.
Checks by IND
From checks by the IND it has become clear that there are self-employed people who use the highly skilled migrant scheme improperly via a recognised sponsor. They are working full-time for their own company via a borrowed worker construction and have an employment agreement with a recognised sponsor, often a payroll company. The IND sees these people as self-employed and not as highly skilled migrants. An employment agreement with a recognised sponsor does not mean that the employee meets the conditions for a residence permit as a highly skilled migrant. There must be an employee as defined by the highly skilled migrants scheme. That the wage of such a self-employed person is paid by a recognised sponsor does not change this fact.
When the residence permit as a highly skilled migrant has been granted, the highly skilled migrant must continue to meet the conditions. Are there any changes in his or her situation because of which the IND sees this person as self-employed? Then you must report this in time to the IND according to the obligation to provide information.
Are you applying for a residence permit for a highly skilled migrant although the conditions have not been met? Or do you not report that the highly skilled migrant no longer meets the conditions, or report this too late? Then this may lead to a sanction or consequences for your recognition as a sponsor. More information is available on Suspension and withdrawal of recognition as sponsor.