On 1 January 2014 the revised Aliens Employment Act (Wet arbeid vreemdelingen or Wav) entered into force establishing more restrictive conditions for allowing low skilled third country nationals (TCNs) to work in the Netherlands. The most important change was that the minimum period for a migrant to obtain free access to the labour market was extended from three to five uninterrupted years of work for a specific employer. This expert opinion examines whether this revision of the Wav combined with the lack of transitional arrangements constitutes a breach of rights protected by the ECHR in three cases of Chinese cooks. These cooks were granted a permit to live and work in the Netherlands under the old Wav. This opinion will answer the following questions:
- Does the prolongation from three to five years constitute a violation of the migrants’ right to property, protected by Article 1 Protocol 1 ECHR?
- Does the prolongation constitute a breach of the prohibition of discrimination in the enjoyment of the rights and freedoms set forth in the ECHR on the basis of Article 14 ECHR in conjunction to Article 1 of Protocol 1 ECHR and Article 1 Protocol 12 ECHR?
Furthermore the expert opinion assesses whether the Chinese cooks have exhausted all domestic remedies as required by Article 35 (1) ECHR.