Recognised sponsors and highly skilled migrants: recognition, the salary criterion and fines in the Council of State

The judgments

The question

A Dutch employer that wants to hire a non-EU national as a highly skilled migrant (kennismigrant) needs two things from the State: recognition as a sponsor (erkend referent) by the Immigration and Naturalisation Service (IND), and a residence permit for the employee. Recognition gives access to an accelerated procedure in which the IND relies on the sponsor’s own declarations. In return the sponsor takes on duties: to pay a salary that meets a statutory criterion, to pay it every month into the employee’s bank account, to keep records, to report changes, and, for some categories, to look after the foreign national.

When something goes wrong, two ministries can act. The Minister of Social Affairs and Employment, through the Netherlands Labour Authority, fines the employer under the Foreign Nationals Employment Act (Wet arbeid vreemdelingen, Wav) for employing a foreign national without a permit, because an employer that misses the salary rules loses the highly skilled migrant exemption. The Minister responsible for migration (in the judgments the State Secretary for Security and Justice, later for Justice and Security, and in the 2026 judgment the Minister of Asylum and Migration) fines the sponsor under Article 55a of the Aliens Act 2000 for breaches of its sponsor duties, and can suspend or withdraw recognition. This review takes six judgments of the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State, “the Division”), which decides appeals in these matters, and sets out what each decided and how they fit together.

The legal framework

Recognition as a sponsor

Under Article 2a(1)(c) of the Aliens Act 2000, an undertaking or legal person, or a branch of one, registered in the trade register may act as a sponsor. The sponsor makes a written declaration for the foreign national’s residence (Article 2a(2)), and an order in council provides for duties of care of sponsors towards the foreign national (Article 2a(3)(b); in the 2018 judgment this was still Article 2a(2)(b)). Recognition is granted, suspended and withdrawn by the Minister under Article 2c. It relates to the purpose of residence (Article 2c(2)), is valid for an indefinite period (Article 2c(3)), and recognised sponsors appear in a public register (Article 2c(6)).

The Minister may refuse recognition on the grounds in Article 2e(1), among them insufficiently assured continuity and solvency (point (b)) and reliability that “has not been sufficiently established” (point (c)). Recognition may be suspended under Article 2f and withdrawn under Article 2g, for instance where the sponsor “has failed to comply with its obligations as a sponsor”. The quid pro quo is Article 24a(1)(b): where a recognised sponsor applies and submits its own declarations, the IND does not ask for the underlying documents, and those declarations must be complete and truthful (Article 24a(2)).

The Aliens Decree 2000 fills this in. Article 1.9(1) allows the employer recognised under Article 2c to act as sponsor for a highly skilled migrant with whom it has an employment contract, provided it is registered in the trade register. Article 1.16 sets out the sponsor’s duties of care: for exchange, the proper implementation of the exchange programme; and, in our current text, for highly skilled migrants, EU Blue Card holders and students, “the careful selection and recruitment of the foreign national” (Article 1.16(2)). In assessing an application for recognition, trade register data on continuity and solvency must be taken into account (Article 1.18(1)), and in assessing reliability, Article 1.19(1) lists criminal convictions and fines that must in any event be weighed, including tax penalty fines under Articles 67d to 67f of the General State Taxes Act, fines under Article 55a of the Aliens Act 2000 and fines under Article 18 of the Wav. The residence permit for a highly skilled migrant itself is granted under Article 3.30a(1) to a foreign national who works for an employer recognised as a sponsor.

The highly skilled migrant exemption from the Wav

Article 2(1) of the Wav prohibits an employer from having a foreign national perform work in the Netherlands without an employment permit or a combined permit. Highly skilled migrants are exempted by decree. In the judgments the exemption is Article 1d of the Foreign Nationals Employment (Implementation) Decree (Besluit uitvoering Wav); it now sits, in substantially the same wording, in Article 2.1(1) of the 2022 Decree. The link is visible in the judgments themselves: the reporting duty in Article 4.23 of the Aliens Regulation 2000 referred to Article 1d in the version annexed to the 2021 judgment and refers to Article 2.1 of the 2022 Decree in the version annexed to the 2026 judgment.

The exemption has three elements that recur in the case law: - a monthly salary threshold, the “agreed fixed wages, determined by reference to time and in money”, excluding holiday allowance. The amounts applied in the judgments were €4,240 (at the time of one permit application in the 2021 case), €4,324 (2017–2018) and €4,404 (2018–2019) for migrants aged 30 or over; our current text sets €5,942 and €4,357 for under-30s (Article 2.1(1)(a)), indexed each 1 January (Article 2.1(5)); - payment by the employer “for a period of no more than one month at a time” into a bank account in the migrant’s name, at a salary in line with the market (Article 2.1(6); in the 2022 judgment this was Article 1d(5), in the 2021 judgment Article 1d(1) read with paragraph 4); - recognition of the employer as a sponsor (Article 2.1(2)).

If any element fails, the exemption falls away and the employer breaches Article 2(1) of the Wav unless it holds an employment permit. Professional footballers are excluded from the exemption altogether (Article 2.1(4)(a)), a point that features in the 2016 judgment. EU Blue Card holders have a separate exemption with its own salary thresholds and the same monthly bank payment rule (Article 2.2(1) and (8)); none of the judgments reviewed here concerns a Blue Card.

Two fining regimes

Breach of Article 2(1) is an offence under Article 18 of the Wav, fined under Article 19a. The Minister must adopt policy rules setting the fine amounts (Article 19d(6)); in the judgments this is the Beleidsregel boeteoplegging Wav 2017, whose norm amount, according to the 2022 judgment, was €8,000 per foreign national for legal persons and €4,000 for natural persons, with reductions of 25%, 50% or 75% under its Article 11. Fines are increased for repeat offences within five years (Article 19d(2)) and published (Article 19g).

Breaches of sponsor duties are fined under Article 55a of the Aliens Act 2000, which is not in our translated selection. As reproduced in the annexes to the 2021 and 2026 judgments, it allows a fine of up to €3,000 for undertakings and legal persons and €1,500 for natural persons per breach of, among others, the duties of care and the duties to provide and keep information; the 2018 and 2026 annexes add a 50% increase for a repeat within 24 months. The IND’s policy is in paragraphs B1/9.1 to B1/9.8 of the Aliens Act Implementation Guidelines (Vreemdelingencirculaire 2000). Both regimes are governed by the General Administrative Law Act (Awb): the fine must match the seriousness of the offence and the degree of culpability (Article 5:46(2) Awb), and separate fines may be imposed for breaches of separate provisions (Article 5:8 Awb).

Recognition and reliability: Council of State, 21 January 2016

Facts and lower court. A company that employed professional footballers applied for recognition as a sponsor. The State Secretary for Security and Justice refused on 4 April 2014 and dismissed the objection on 1 July 2014 without a hearing. The ground was the policy in paragraph B1/2.1 of the Aliens Act Implementation Guidelines: recognition is refused where tax penalty fines (vergrijpboetes) under Articles 67d to 67f of the General State Taxes Act have been imposed in the four years before the application. The Tax Administration had imposed such fines for 2012, 2011 and 2010 of €5,079, €2,714 and €5,920, for not paying wage tax on certain expenses of footballers. The District Court of The Hague (sitting in Amsterdam) upheld the company’s appeal on 5 March 2015 (case 14/17668), reviewing the reliability question in full and finding no basis for the view that the company’s reliability was insufficiently established.

Latitude for the Minister (para. 2.1). On the State Secretary’s appeal, the Division held that Article 2e(1)(c) is an open norm that needs to be filled in. Article 1.19 of the Aliens Decree lists what must in any event be considered, including tax penalty fines. Relying on the parliamentary history of the Modern Migration Policy Act, the Division stressed that the IND decides on the basis of the recognised sponsor’s own declarations and must be able to trust them. The legislature therefore intended to give the Minister latitude (beoordelingsruimte), and the District Court should have reviewed his view on reliability with restraint. The appeal succeeded on that ground alone.

The policy tested (paras. 4–6.1). Deciding the case itself, the Division rejected each of the company’s grounds. A policy may contain mandatory refusal grounds even though no ministerial rules had been made under Article 1.22 of the Aliens Decree (para. 4.1). At the hearing the State Secretary explained that the policy refuses recognition where tax penalty fines were imposed in the year of application and the three preceding years, with a lower limit of two fines in that period, because an error repeated over more than one year weighs more heavily and penalty fines require intent or gross negligence. That fell within a reasonable interpretation of the law (para. 5.2). The argument that the IND could simply check the sponsor’s data afterwards also failed:

It does not fit within the statutory framework of those provisions for the State Secretary to recognise as a sponsor an applicant whose reliability has not been sufficiently established. Checking the information provided by a sponsor does not, after all, fit within the accelerated procedure.

The company’s further points (the fines had been reduced because it had reported the error itself, the Tax Administration had written on 20 and 21 March 2014 that calling it unreliable was incorrect, it complied with the salary norm, and refusal made it hard to hire non-EU footballers because the UWV may then refuse employment permits under Article 9 of the Wav) were not special circumstances within Article 4:84 Awb, because they were deemed to have been taken into account when the policy was made (para. 6.1). The Division noted two statements made at the hearing: the UWV refuses a permit only if the reason for refusing recognition is relevant to the permit application, and the 2010–2012 fines would not stand in the way of recognition on an application made in 2016, if the company met the requirements.

Outcome (paras. 8–9). The State Secretary should have heard the company on its objection: there was no case law on the policy yet, so the objection was not manifestly unfounded (Article 7:3(b) Awb). The objection decision was quashed for that reason, but its legal effects were left intact. The State Secretary was ordered to pay €1,984 in costs and to refund the court fee of €165.

Recognition does not pass on a transfer of business: Council of State, 2 March 2022

Facts. A sole proprietorship that was a recognised sponsor employed three Russian nationals as highly skilled migrants: a business economics adviser, an IT business consultant and a project coordinator. On 28 June 2018 the business, with all its assets and liabilities, was contributed to a company with its own Chamber of Commerce (KvK) number. Fine reports of the Labour Authority dated 26 April 2019 found that between 1 January and 28 June 2018 salaries had not been paid monthly, so that the conditions of Article 1d(1) and (5) of the Implementation Decree were not met. After the transfer, two of the migrants worked for the company, which was not a recognised sponsor and held no employment permits.

Fines and objection. On 1 October 2019 the State Secretary for Social Affairs and Employment fined the sole proprietorship €20,000 and the company €12,000, and decided to publish the inspection data. On objection the fines were cut to €7,000 and €6,000 (para. 3). One migrant held a residence document endorsed “Arbeid vrij toegestaan. TWV niet vereist” (work freely permitted, no employment permit required), so the fines concerning him were withdrawn. For the sole proprietorship, the norm amount for natural persons (€4,000) should have applied instead of that for legal persons (€8,000). A 25% reduction for one migrant had been granted wrongly, because the salary criterion was not met, but was kept because of the ban on reformatio in peius in objection. The company was given a 25% reduction because the migrant was recorded in its records. The District Court of Overijssel dismissed both appeals on 23 February 2021 (cases 20/798 and 20/799).

The sole proprietorship (paras. 5–6.5). The owner argued that a business that no longer existed could not be fined. The Division held that the date of the offence, not the date of the fine, determines who can be fined, and the trade register showed the sole proprietorship was registered throughout the period of the offences. The owner was liable for its debts, including the fine; the Supreme Court judgment of 20 October 2017 (ECLI:NL:HR:2017:2655) on legal persons did not apply to a sole proprietorship (para. 5.1). On reduction, the Division restated the review framework: imposing a Wav fine is a discretionary power, the policy amounts must be checked for proportionality in each case, and the court reviews without restraint (para. 6.1); absence of all culpability excludes a fine, and reduced culpability may justify a reduction (para. 6.2). It is the employer’s own responsibility to check compliance at the start of the work, and the regulations clearly require monthly payment (para. 6.3, citing its judgments of 3 October 2007 and 13 May 2020). The 25% reduction in Article 11 of the 2017 policy requires, for highly skilled migrants, that the salary criterion is met, and that was exactly what was missing. Nor had the breach been unwitting: the owner’s own statements showed that one salary was held back during a dispute over a non-compete clause and the other because the client for whom the migrant worked had not paid its invoices (para. 6.4). The Division added that by employing the migrants unlawfully the business had displaced legal labour supply.

The company: recognition is not transferred (paras. 8–8.2). The company argued that the sole proprietorship’s recognition had passed to it by operation of law, relying on Directive 2001/23/EC on transfers of undertakings, and that the fines should wait for the outcome of the IND procedure on withdrawal of the recognition. The Division held that the Minister did not have to wait. A decision of 7 March 2019, which had become final, stated that the sole proprietorship was no longer treated as a recognised sponsor from 5 July 2018 and that the company was not recognised. On the merits, the Division read Article 2a(1)(c) of the Aliens Act together with Article 1.9(1) of the Aliens Decree, as they read at the time of the transfer, and pointed to its earlier judgment of 18 January 2018 (ECLI:NL:RVS:2018:173), which had accepted as reasonable the IND policy that separate businesses with their own trade register entry need separate recognitions, because the assessment of continuity, solvency and reliability under Articles 1.18 and 1.19 differs per undertaking. Work Instruction 2017/9, in force at the time of the transfer, went further:

That instruction specifies that recognition as a sponsor is linked to the Chamber of Commerce number and cannot be transferred. It therefore follows clearly from the policy of the State Secretary for Justice and Security that [the company] should have submitted a new application for recognition as a sponsor on the basis of its own Chamber of Commerce number in order to be able to use the highly skilled migrant scheme.

The Directive did not help, because its recitals show that it protects employees on a change of employer:

It does not follow from that directive that, on the transfer of an undertaking, a status which the undertaking has obtained from the government, such as in this case the status of recognised sponsor, passes by operation of law to the acquiring undertaking.

Legitimate expectations and culpability (paras. 9–9.4). The owner said an IND official had told her by telephone in 2018 that nothing needed to be done. The Division applied its three-step test for legitimate expectations (para. 9.1) and found no concrete and unambiguous assurance; the claim was unsubstantiated (para. 9.2). Nor was there reduced culpability:

Given that responsibility, it was for [the company], if it was unclear to it whether it was the employer, how the highly skilled migrant scheme applied after the takeover of [the sole proprietorship] and whether it needed an employment permit for the employees who had entered its employment by operation of law as a result of the takeover, to obtain information from the UWV or the IND.

Outcome. Both appeals failed, the District Court’s judgment was upheld, and no costs were awarded.

Late salary payments and two fines for one shortfall: Council of State, 1 September 2021

Facts. In a pilot project called “Erkende Referenten”, in which the Labour Authority and the IND examined the whole business of employers of highly skilled migrants, inspectors looked at a company employing two Chinese nationals as general director and sales director. The fine report of 16 October 2018 found that the general director had been paid below the threshold from April 2017 to April 2018, and that the sales director’s salary for August to October 2017 and December 2017 had been paid only on 31 January 2018. On 13 May 2019 the company was fined €16,000 and a decision was taken to publish the inspection data. On objection, on 7 February 2020, the fine was halved to €8,000 because the general director had met the salary threshold as it stood when his permit was applied for. The District Court of The Hague (sitting in Groningen) dismissed the appeal on 21 October 2020 (case 19/3601).

Monthly payment (para. 4.1). The company argued that the Minister’s own decision found that the gross salary criterion was met, and that its employment contract stipulated that the first salary would be paid by the end of January 2018, which it was. The Division held that Article 1d(1)(a)(1°), read with the fourth paragraph as it then stood, clearly requires monthly payment (citing ECLI:NL:RVS:2020:1232). Meeting the gross criterion means only that the agreed monthly salary exceeded the €4,240 threshold. That the deferral was written into the contract and honoured did not change the fact that the company had not paid a fixed salary every month.

Two fines for one shortfall (para. 5.2). The State Secretary for Justice and Security had separately fined the company under Article 55a of the Aliens Act because, as sponsor, it had not reported to the IND that the sales director had not started before 1 August 2017, contrary to earlier information, and that his salary had not been paid. The company invoked ne bis in idem. The Division held that the Aliens Act fine concerned the sponsor’s duty to report all changes that may affect the migrant’s residence position and its own position as sponsor, whereas the Wav fine concerned illegal employment because the salary was not paid monthly:

Since this involves breaches of two different provisions with different purposes, the State Secretary for Justice and Security and the Minister were entitled, having regard to Article 5:8 of the Awb, to impose a fine for each of the two breaches.

No reduction (paras. 5.1, 5.3–5.5). The District Court had wrongly left the company’s other arguments unaddressed, so the Division considered them itself (para. 5.1). Article 1d was amended with effect from 1 January 2014 to prevent underpayment and to stop employers from meeting the monthly criterion through later payment or non-monthly components. Against that background the company should have known that a fixed monthly gross salary was an essential requirement and should have checked its contract (para. 5.5). That it acted without intent, gained nothing, paid tax and contributions, paid the right salary of its own motion and had no previous offence was insufficient, all the more because it never explained why it had not met the criterion. The 13-week time limit for the fine decision in Article 5:51 Awb is a non-mandatory time limit (termijn van orde), the Wav policy, unlike the Aliens Act policy, contains no reduction for exceeding it, and the company had been told by letter of 17 October 2018 that the 13 weeks might not be met, and had not shown that its interests were harmed. Finally, the Aliens Act fine had been imposed after the Wav fine and was not yet final; under the parliamentary history of Article 5:8 Awb it was for the State Secretary for Justice and Security to consider whether to take the earlier Wav fine into account. The Division distinguished its judgment of 9 July 2014 (ECLI:NL:RVS:2014:2493), which concerned two breaches of the same Act with the same reasoning.

Outcome. The appeal failed and the District Court’s judgment was upheld; no costs were awarded.

The salary criterion and the 30% ruling: Council of State, 6 December 2023

Facts. A recognised sponsor paid a Chinese highly skilled migrant, aged over 30, who worked at another business but was on the sponsor’s payroll. Her residence as a highly skilled migrant ran from 26 November 2018 to 1 December 2020. The applicable criterion was €4,404 gross per month excluding holiday allowance; her payslips showed €4,330 gross from 1 December 2018 to 31 March 2019. On the basis of fine reports of 8 April 2020 and 12 January 2021, the Minister of Social Affairs and Employment fined the sponsor €8,000 on 21 April 2021 for breach of Article 2(1) of the Wav, and dismissed the objection on 27 July 2021.

Lower court (para. 3). According to the Division’s account, the District Court of Midden-Nederland (judgment of 14 June 2022, case 21/3791) held that the sponsor had not shown a settled IND policy of testing the criterion against a net salary agreement with the 30% ruling applied. Paragraph B15/5.1.2 of the Aliens Act Implementation Guidelines, on which the sponsor relied, was no longer in force, and the fact that the IND had granted the permit did not show that it endorsed the sponsor’s method, since the sponsor itself enters the gross salary on the form and the IND decides without supporting documents. The procedural history at the head of the published judgment states that the District Court upheld the appeal and revoked the fine; that does not fit with para. 3 or with the Division’s decision, which itself quashes the District Court’s judgment and revokes the fine, and this review follows para. 3.

The grounds. The sponsor argued that the €4,330 gross was the result of applying the 30% ruling, and that without it the gross salary would have been €5,349. It relied on an IND newsletter of March 2006, Work Instruction 2006/21 of 8 September 2006 and the Guidelines as they stood in 2012. After the hearing of 20 April 2023 it filed an email exchange with the IND of 20 April to 9 May 2023; the Division reopened the investigation under Article 8:68 Awb and the Minister responded by letter of 14 August 2023.

The 30% ruling and IND policy (paras. 4.1–4.2.1). The Division described the 30% ruling as allowing the employer to designate up to 30% of the wages as an untaxed allowance for extraterritorial costs, and noted, citing parliamentary papers and the Dialogic evaluation of 1 June 2017, that one of its aims is to keep the business climate attractive, so that it fits that aim for part of the benefit to go to the employer (para. 4.1). Paragraph 5.2 of Work Instruction 2006/21 said that the gross income in the employment contract is decisive, that net amounts must be converted to gross, and that where the gross salary falls below the criterion because of the 30% ruling, payslips and proof of the ruling must be supplied; the employer should be able to use the tax facility “without becoming the victim of it in an immigration procedure” (para. 4.2). In the 2023 emails the IND said that the 2006 newsletter was still, at least in part, its practice, but also that the 30% ruling should benefit the migrant and that net pay should not be grossed up “favourably” by ignoring a ruling that had in fact been granted (para. 4.2.1).

Burden of proof (paras. 4.3–4.3.4). Because of Article 6(2) ECHR, the authority bears the burden of proving the offence and the employer gets the benefit of the doubt (para. 4.3). The payslips discharged the Minister’s initial burden (para. 4.3.1). But the documents produced by the sponsor showed that the IND, where the 30% ruling is applied, in some cases also accepts a calculation that starts from the net salary paid and grosses it up taking the effects of the ruling into account, and then compares the grossed-up amount with the criterion:

It follows that for many years the IND, as a matter of policy, has not insisted in all cases that the payslip of the highly skilled migrant must itself show that the gross salary criterion is met, and in some cases also accepts a different way of calculating the gross salary.

That raised doubt about the Minister’s position that only the payslip gross counts, and about the finding that this migrant had been underpaid. The Minister did not dispel it (para. 4.3.3). His argument that the benefit of the ruling must go to the employee contradicted the aim described in para. 4.1, and his argument that an employer cannot apply one scheme and not fully apply the other contradicted the IND’s own instruction that employers should not become victims of the tax facility. The Minister had therefore not proved the breach, and the fine was wrongly imposed (para. 4.3.4).

Outcome (para. 5). The appeal was upheld, the District Court’s judgment quashed, the objection decision quashed and the fine decision of 21 April 2021 revoked, with the Division’s judgment replacing the quashed decision. The Minister was ordered to pay €4,782 in costs and to refund court fees of €908. The tax side of the 30% ruling, including the 150 km test for who qualifies, is the subject of our review of the 30% ruling; the current rules are in Article 31a of the Wage Tax Act 1964 and Article 10ea of the Wage Tax Implementing Decree 1965, whose percentages have changed since the period in this case, as the notes to our translation explain.

The sponsor’s duty to report a salary shortfall: Council of State, 30 September 2026

Facts. A real estate investment company, a recognised sponsor since 2013, employed one highly skilled migrant. After an inspection visit in 2020 by the IND and the Labour Authority, a report of findings of 4 May 2021 found that the company had not reported in time that it had underpaid the migrant from June 2017 to February 2021, so that the salary criterion was not met, and that it had breached its record-keeping duty. On 30 August 2023 the State Secretary for Justice and Security fined it €1,800 under Article 55a of the Aliens Act: a basic amount of €3,000, reduced by 40% under the policy because of the long duration of the procedure, in two parts, one for each duty. On objection, on 26 January 2024, the record-keeping part was dropped and the fine set at €900. The District Court of The Hague (sitting in Amsterdam) upheld the appeal on 5 September 2025 (case 24/2703), quashed the objection decision as regards the amount and set the fine at €855. The company had also been fined under the Wav. On appeal only the amount of the Aliens Act fine was in dispute (para. 3).

Culpability and voluntary disclosure (paras. 5–5.5). The company argued that the underpayment was an obvious bookkeeping error, that its records were correct, tax and contributions paid and its cooperation full, and that it had reported the error of its own motion by letter of 27 October 2020. The Division set out the same review framework as in the Wav cases (para. 5.1). The Minister had treated the offence as of increased seriousness because the criterion was not met for most of the period from June 2017 to February 2021, and the culpability as normal (para. 5.2). The District Court had rightly given its own view and taken into account that the company had been a recognised sponsor since 2013 and had been told of its obligations at the outset; it had taken no measures to prevent a breach, and it was legally obliged to pay the salary correctly (para. 5.3). Under the policy, information is not provided of the sponsor’s own motion if it is provided after the Minister has approached the sponsor in the context of enforcement and the information can reasonably be assumed to be connected with that. The Minister had asked on 28 and 29 May 2020 for personnel data, payroll records and business documents of four employees, including the migrant, so the letter of 27 October 2020 was reasonably connected with that request (para. 5.4).

Concurrence with the Wav fine (paras. 6–6.3). Following its 2021 judgment, the Division held that the two fines rest on different articles with different purposes: the Wav fine on illegal employment because the salary was not paid, the Aliens Act fine on the sponsor’s duty to report changes affecting the migrant’s residence position and its own position as sponsor. Both could be imposed under Article 5:8 Awb (para. 6.1). Nor were they the same act for the purpose of taking an earlier sanction into account: the Aliens Act fine was for failing to tell the Minister about the shortfall, the Wav fine for employing the migrant without paying the required salary. The Division found the fine “appropriate and called for” (para. 6.2).

Reasonable time (paras. 7–7.4). The reasonable time under Article 6(1) ECHR starts when the authority does something from which the person can reasonably expect a fine. A hearing on 16 February 2021, preceded by a caution, did not start it, because it showed only that a fine might follow; the notice of intention of 10 May 2023 did (paras. 7.1–7.2). The company was right that the time between the fine report and the notice of intention can justify a reduction under paragraph B1/9.8 of the Guidelines, but the Minister had already reduced the fine on that ground (para. 7.3).

Outcome (paras. 8–9). The appeal raised no question of EU law (para. 8). The District Court’s judgment was upheld and no costs were awarded.

Duty of care and duty to inform: Council of State, 26 November 2018

This judgment concerns an exchange sponsor, an au pair agency, not an employer of highly skilled migrants. It is included because it is the Division’s fullest analysis of the two types of sponsor duty that Article 55a of the Aliens Act sanctions.

Facts. A sole proprietorship placed Filipino au pairs in the Netherlands as a recognised sponsor. An au pair received a residence permit from 11 June 2014 to live with a family presented as a couple with two children. The intake visit on 4 March 2014 took place without the host mother, the au pair contract of 5 May 2014 was signed only by the host father, and the population register extract of 27 March 2014 gave no information on the registration of the mother and the children. On 13 and 14 December 2014 the au pair contacted the agency and left the family. The agency’s notification forms of 5 January 2015 reported a breach of the agreed schedule, work in breach of the Wav and an “untenable situation”, but did not tick the box that the host family no longer consisted of at least two persons. On 23 March 2016 the State Secretary fined the agency €10,500 under Article 55a. On objection, on 1 February 2017, the €3,000 for breach of the record-keeping duty was dropped and €7,500 for breach of the duty of care and the duty to inform maintained. The District Court of The Hague (sitting in Haarlem) upheld the agency’s appeal on 14 February 2018 (case 17/4653) and revoked the fine, mainly because the State Secretary had not investigated further by hearing the au pair and the host family and had not weighed exculpatory material.

Caution and investigation (paras. 3–6). Documents that a sponsor must keep in its records under the Aliens Act system and supply on request can be used even though no caution was given; the sponsor cannot rely on the right to remain silent for them (para. 3.2). There is no statutory duty to draw up an Aliens Act fine report on oath, although it may sometimes be desirable. Failing to hear those involved before the fine did not make it unlawful, because the agency had been heard on objection and had answered the au pair’s account in writing. The State Secretary’s failure to weigh the au pair’s early questionnaire was a defect, which he acknowledged at the hearing, but it had no consequences here. Above all, the evidence and the extent of the duty to investigate must be assessed offence by offence, depending on whether the duty is one of effort or of result (para. 6).

Duty of care: an obligation of effort (paras. 7–9). The statutory duty of care is specified in Article 1.16 of the Aliens Decree and Article 1.5 of the Aliens Regulation 2000. From the explanatory notes, which describe au pairs as a vulnerable group and require careful selection of host families, the Division concluded:

The Division infers from this that the duty of care relating to the careful selection of the host family must be regarded as an obligation of effort and not as an obligation of result.

An obligation of effort still demands real effort. The absence of the host mother at the home visit is not in itself unusual, but here, together with a contract signed by the father alone and an inconclusive register extract, it was a concrete reason to check whether the family consisted of at least two persons as required by Article 1j of the Implementation Decree (para. 7.2). Careful selection is “the pillar of the exchange programme”; it was foreseeable that the family’s composition and address had to be verified, so the lex certa objection failed, and the host father’s later statement carried little weight because he had agreed with the agency to bear any fines (para. 7.3). The agency had also not checked on the au pair’s welfare between 8 August and 13 December 2014; its records showed no contact and its claim of three telephone calls was unsubstantiated (para. 8.2). Each failure carried the breach on its own (para. 9).

Duty to inform: an obligation of result (para. 10.2). By contrast, “the Division regards the duty to inform, unlike the duty of care, as an obligation of result” (para. 10.2, our translation). The duty under Article 4.17(1) of the Aliens Regulation is limited to what the sponsor knows or can know, but the emails of 13 and 14 December 2014, including the host father’s own answer listing only his son and daughter, showed that the mother was no longer part of the family. Failing to tick the box for a change in family composition was a breach.

Sanction (paras. 12–17). The two duties concern different conduct that the legislature made separately punishable, so there was no ne bis in idem (para. 12). Both breaches were fully culpable (paras. 13–14). The policy of fining a serious breach of the duty to inform, one that leads or would have led to withdrawal of the permit, without a prior warning was not unreasonable, and the permit had been withdrawn (para. 15.1). Even so, the total of €7,500 was disproportionate. The family had consisted of one host parent from the start, so the unreported change could not be separated from the careless selection, and the agency had immediately reported the au pair’s departure and new address; the reporting failure was of minor weight and merited a warning instead of €3,000 (para. 15.2). The agency’s financial-capacity argument failed because its bookkeeper’s letter of 30 June 2016 related to the original €10,500 (para. 16). The Division upheld the State Secretary’s appeal, quashed the District Court’s judgment and, deciding the case itself, set the fine at €4,500. The State Secretary was ordered to pay €3,006 in costs and to refund the court fee of €168.

How the judgments fit together

Recognition is personal to the entity. The 2016 and 2022 judgments show the same logic from two sides. Because the IND relies on the sponsor’s own declarations in the accelerated procedure, it must be able to trust the particular entity it recognises, and the law gives the Minister latitude to refuse recognition where reliability is doubtful. For the same reason, recognition is linked to the KvK number of the entity that was assessed and does not travel with a business on a transfer, a merger or a split. The 2022 judgment rests in part on IND policy (Work Instructions 2013/3 and 2017/9) that the Division found not unreasonable and on the Aliens Act and Decree as they read in 2018; it does not decide whether a transfer that keeps the same KvK number, or a change that does not create a new registration, has the same effect.

The salary criterion has a form element and an amount element. The 2021 and 2022 judgments treat the monthly payment requirement as strict: an agreed or contractual deferral, a single late month, a dispute with the employee or a client’s non-payment does not save the exemption, and being above the threshold on paper is not enough. The 2023 judgment, by contrast, is generous on the amount: where the 30% ruling applies, the IND’s own long-standing practice of comparing grossed-up net pay with the criterion was enough to create reasonable doubt. The 2023 judgment was decided on the burden of proof in a fine case. It does not hold that grossing up is the correct method in every case, and the IND’s 2023 emails, as summarised in para. 4.2.1, point in both directions: they confirm the 2006 practice in part, yet say that net pay should not be grossed up by ignoring a ruling that was in fact granted. How the IND tests the criterion when granting or extending a permit, as opposed to how a fine must be proved, remains open.

One shortfall, two fines. The 2021 and 2026 judgments confirm that a single underpayment can lead to a Wav fine for illegal employment and an Aliens Act fine for failing to report it. They rest on different provisions with different purposes, and neither the ban on double punishment nor the duty to take an earlier sanction into account requires a reduction. The 2021 judgment left the second point to the authority imposing the later fine; the 2026 judgment answered it for the Aliens Act fine.

Culpability is judged against the sponsor’s own responsibility. In the 2021, 2022 and 2026 fine cases, the Division starts from the employer’s own responsibility to check the rules before the work begins. Arguments that the error was administrative, unintended, cost-neutral for the employee or a first offence did not lead to a reduction where the rule itself was clear. What did make a difference was the proportionality of the total sanction (the 2018 judgment), the burden of proof (the 2023 judgment) and errors in the authority’s own calculation (the reductions on objection in 2022).

Effort and result. The 2018 distinction between an obligation of effort and one of result was drawn for an au pair agency. It is a reasoned reading of the Aliens Act’s sponsor duties in general, and our current text of Article 1.16(2) extends a duty of care, “careful selection and recruitment”, to sponsors of highly skilled migrants and Blue Card holders. The Division has not, in the judgments reviewed here, applied that analysis to an employer of highly skilled migrants.

What it means in practice

The following points follow from the judgments and from our translated current texts.

• Restructurings. Before any transfer of business, merger, split or change of legal form that creates a new KvK number, the receiving entity needs its own recognition if it is to employ highly skilled migrants. In the 2022 case the IND treated the old recognition as no longer applying from 5 July 2018, a week after the transfer, and the company was fined for the work the migrant did for it from the date of the transfer. The Division expects the employer to ask the IND or the UWV if in doubt and to keep evidence of the answer.
• Pay every month. Salary must reach the migrant’s own bank account for each month. A clause deferring the first payment, an internal dispute or cash-flow problems at a client do not change this. Payroll should flag any month in which a highly skilled migrant is not paid on time.
• The 30% ruling. Where the ruling is applied, keep the Tax Administration’s decision granting it, the payslips and a calculation showing how the agreed gross salary, before the ruling, compares with the criterion. The 2023 judgment shows such documents can win a fine case, but it does not settle the IND’s method in permit applications.
• Report shortfalls promptly. A sponsor that discovers it has paid below the criterion must report it to the IND within four weeks (Article 4.17(1) of the Aliens Regulation 2000, as reproduced in the 2026 judgment). Reporting after the IND or the Labour Authority has asked for payroll data is unlikely to count as voluntary.
• Expect cumulative consequences. One shortfall can produce a Wav fine per migrant, an Aliens Act fine and publication of the inspection result under Article 19g of the Wav. Those fines then count in the reliability test for recognition under Article 1.19(1)(b) of the Aliens Decree, and the policy reproduced in the annex to the 2018 judgment withdraws recognition where there are at least three administrative fines in the past four years. An Aliens Act fine within five years is a ground for refusing or withdrawing employment permits and combined permits (Article 9(1)(k) and Article 12a(b) of the Wav). Our current text of Article 3.30b(1)(b) makes the absence of Wav and similar sanctions in the five years before the application a condition for an EU Blue Card. Repeat Wav fines are increased under Article 19d(2).
• Tax compliance matters for recognition. The 2016 judgment shows that tax penalty fines, even moderate ones reported by the employer itself, can block recognition under a fixed policy for the year of application and the three preceding years.
• Records to keep. Payslips, bank statements showing the date of each salary payment, the employment contract, the 30% ruling decision, copies of every notification to the IND and any correspondence with the IND or UWV about the sponsor’s position. For sponsors with a duty of care, a dated log of contacts and checks was decisive in the 2018 case.
• In proceedings. The Division reviews Wav fines without restraint but expects the employer to explain why the rule was breached. Exceeding the 13-week time limit in Article 5:51 Awb did not lead to a reduction of the Wav fine in 2021 without proof of harm, whereas the Aliens Act policy provides for one, as applied in 2026. The reasonable time for court proceedings runs from the notice of intention to fine, not from a hearing under caution.

Status

Each of the six judgments ends the proceedings: the Division either upheld the District Court or decided the case itself, and none refers the case back or refers a question to the Court of Justice. The legislation has moved on in ways visible in our translations. The highly skilled migrant exemption formerly in Article 1d of the Implementation Decree is now Article 2.1 of the 2022 Decree, with thresholds of €5,942 and €4,357 per month and the same monthly bank payment rule. The duty of care in Article 1.16(2) of the Aliens Decree now expressly covers sponsors of highly skilled migrants and Blue Card holders, and the authority to impose duties of care is in Article 2a(3)(b) of the Aliens Act. The Blue Card is now governed by Directive (EU) 2021/1883, as Article 3.30b and Article 2.2 of the 2022 Decree show. In the 2026 case the fine was imposed by the State Secretary for Justice and Security, but by the time of the appeal the respondent was the Minister of Asylum and Migration. Article 55a of the Aliens Act and the IND policy in the Aliens Act Implementation Guidelines are not in our translated selection, and the fine amounts quoted above are those reproduced in the judgments.

Provisions discussed

• Aliens Act 2000: Art. 2a, Art. 2c, Art. 2e, Art. 24a
• Aliens Decree 2000: Art. 1.9, Art. 1.16, Art. 1.18, Art. 1.19
• Foreign Nationals Employment Act: Art. 2, Art. 9, Art. 19d
• Foreign Nationals Employment (Implementation) Decree 2022: Art. 2.1

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How to cite

Case law review by BCA EU, for information. Quotations from the judgments are our translations; only the original texts published by the courts are authoritative. Judgments checked on the official sources on 30 October 2026. This page is not legal or tax advice.