Currently, the UWV (Employee Insurance Agency) and the government grant asylum seekers who want to work a work permit of up to 24 weeks. As a longer work permit can lead to entitlement to unemployment benefits according to the UWV and expanding the work rights of asylum seekers wrongly gives the impression that they can stay longer, the UWV considers the maximum to be lawful and in line with government policy. However, the Gelderland court considers this restriction to be in conflict with EU legislation. Elmira van Vliet, Assistant Professor of Labour Law at Erasmus School of Law, explains the Unemployment Insurance Act (WW) in the context of the court's ruling and how exceptions limit the entitlement to unemployment benefits.
On Wednesday 29 March, a hearing took place at the Gelderland court in which entrepreneur Maarten van Panhuis - who helps asylum seekers and recognized refugees find work as an employer - and an asylum seeker argued for a change in the law that currently prevents asylum seekers from working more than 24 weeks per year. On 18 April , the court ruled that the complaint of the asylum seeker and the entrepreneur is well-founded and that the 24-week requirement is in conflict with the EU Reception Conditions Directive.
The controversial 24-week requirement
The so-called 24-week requirement is stated in the Foreign Nationals Employment Act, which stipulates that foreign nationals who have applied for a residence permit for a specified period and whose application has been under consideration for at least six months, may work a maximum of 24 weeks out of the 52 weeks in a year. The maximum is intended to ensure that asylum seekers never become entitled to unemployment benefits, as this could lead to problematic situations according to the government and the UWV.
Van Vliet explains that the entitlement to unemployment benefits is subject to several general conditions under the Unemployment Insurance Act: "For the right to unemployment benefits, the insured concept (in short, you must be an employee) and the unemployment requirement must be met. In addition, the so-called reference requirement applies and no exclusion grounds may apply. In short, the reference requirement, which is also known as the weeks requirement, means that you must have worked for at least 26 calendar weeks out of the 36 calendar weeks before becoming unemployed; there must be a connection to the labor market. The number of hours worked in those weeks is not relevant, even one hour is enough." If these requirements are met, employees, including working asylum seekers, are entitled to unemployment benefits.
According to the UWV and the government, it would become complicated if an asylum application were rejected and the asylum seeker would still be entitled to unemployment benefits. However, according to the court, the Unemployment Insurance Act already provides for an exclusion ground when an asylum seeker no longer (legally) resides in the Netherlands: "If an exclusion ground applies, there is no entitlement to unemployment benefits. If there was initially an entitlement to unemployment benefits but an exclusion ground applies during the duration of the benefits, the entitlement to unemployment benefits ends from that moment on," says Van Vliet. This also applies to an asylum seeker who would no longer (be allowed to) reside in the Netherlands, as not legally residing in the Netherlands or residing outside the Netherlands are two of the exclusion grounds of the Unemployment Insurance Act.
- Assistant professor
- More information
For more information, click here for the court's ruling (in Dutch).