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Is an employer allowed to let a migrant worker work without a citizen service number?

On 25 November 2022, the NOS published an article about three asylum seekers who gave the IND (the immigration and naturalization service) an ultimatum to issue a BSN (the citizen service number). In that article, the asylum seekers (wrongly) assumed that the IND is in charge of that and that it isn’t allowed to work in the Netherlands without a BSN. In this blog series, we will explain how a migrant worker can work in the Netherlands without a BSN. In our first blog, we discuss the requirements for the employment of asylum seekers and clarify that it isn’t required that the asylum seeker has a BSN.
Stefan Kleijer
17 April 2023
17 April 2023

Requirements for employment of asylum seekers

An employer is prohibited from having a foreign national perform work in the Netherlands without a work permit (‘TWV’) or without a foreign national being in possession of a combined permit to work for that employer (article 2, paragraph 1 of the Foreign Nationals Employment Act ('Wav')). A foreign national who has applied for an asylum residence permit may be eligible for a TWV if the following conditions are met:

  1. The asylum application has been pending for at least six months.
  2. The foreign national shall be offered shelter in accordance with the Asylum Seekers and Other Categories of Aliens Regulation 2005.
  3. The foreign national resides lawfully in the Netherlands by virtue of article 8, sub f or h of the Aliens Act 2000.

That the foreign national meets these conditions must be evident from a declaration by the Minister of Justice (section 8.2 Aliens Employment Act Implementation Regulations 2022 ('RuWav 2022')). This declaration can be requested from the Central Agency for the Reception of Asylum Seekers by the UWV (the employee insurance agency), the authority to which the TWV application must be submitted. It’s also required that the foreign national will perform the work under market conditions (article 6.2, paragraph 1, sub b of the Decree on implementing the Aliens Employment Act 2022 ('BuWav 2022').

The 24-week requirement under discussion

The BuWav 2022 also imposes a requirement that the work mustn’t exceed a work period of 24 weeks in total within a period of 52 weeks from the start of the work. On 21 November 2021, the State Attorney issued an opinion on the aforementioned requirement and concluded that this requirement is at odds with article 15 of the Scope Directive. There is no final word on this yet.

Which requirements don’t apply?

If the aforementioned conditions are met, the UWV will grant the application. For the TWV, the following (mandatory) grounds for refusal won’t apply: a) priority job offer, b) vacancy notification, c) recruitment efforts, f) minimum wage, and h) limitation of number of permits (article 8, paragraph 2 Wav). With that, this could potentially be an interesting option to explore for many employers facing employment shortages.

Contrary to popular belief and writing, an asylum seeker who fulfils the aforementioned conditions isn’t required to have a BSN. Section 7.1 of schedule I of the RuWav 2022 only requires the TWV to mention the BSN, if the BSN is known. From this, it can be deduced that there is no requirement to have a BSN.

For Ukrainians who want to enter the Dutch labour market, the situation is more nuanced. Namely, they need to apply for a so-called O-document. In the application procedure, they do have to provide their BSN. It can be questioned whether such a requirement is not at odds with the temporary protection that applies to refugees from Ukraine, which includes the right to freely enter the labour market.

Other obstacles

However, it’s compulsory for the employer to pay the (minimum) wage monthly by giro into a bank account in the name of the foreign national (article 7a Minimum Wage Minimum Holiday Allowance Act jo. article 11a Wav). If the foreign national doesn’t (or no longer) have a bank account, this may be an obstacle, as Dutch banks generally ask for a BSN to open a bank account.

If you have any questions about hiring employees without a BSN and/or about hiring employees coming from outside the EU/EEA, please feel free to contact us.