The new legislation transposing the Single Permit Directive and constitutes grounds for further implementation of the Intra-Corporate Transferees Directive, Seasonal Workers Directive and the Directive on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing. should be fully released and enter into force soon.
Although in general applications are lodged by external service providers, inhouse mobility managers must be aware of certain aspects will impact the internal decision-making process.
Third-country nationals, candidates for recruitment might be residing:
- In Belgium
- In another EU/EEA country
- Out of the EU/EEA territory
1 In regard to candidates residing in Belgium, residence permits (or equivalent documents) issued will contain a reference to the access to the labour market as follows:
- “no access”
No access to the labour market considering the current authorisation of stay.
- “unlimited access”
The candidate may commence employment immediately.
- “limited access”
The limitation can be determined by different situations such as an authorisation of work for a specific employer in the capacity of locally hired or posted worker (e.g. the current work permits type B), and certain exemptions for such an authorisation on grounds of the nature of the activity carried out (e.g. managers earn above the minimum wage threshold provided for by Article 37 Royal Decree of 9 June 1999 as amended by the different regional authorities, pursuant to Art 2.33° said royal decree).
Such candidates, if recruited, must obtain a new authorisation of stay for work purposes and may not commence employment before that. The employment contract must contain a suspensive condition that defers the execution of the contract to the approval of the new authorisation.
In the event that a third-country national employed in Belgium will be deprived of the right of work (authorisation of work withdrawn by the regional authority), leave to remain for a period of 90 days will be automatically granted, in order to facilitate a search for a new job. Provided that the validity of the residence permit expires, the third-country national will be issued a temporary authorisation of stay, valid for 90 days, which can be renewed, before it expires, if an application to renew the single permit is lodged, and a decision is yet to be made.
It must be recalled that holders of an EU Blue Card (card type H) issued in Belgium and valid three years, are authorised to take employment with any employer in Belgium, considering the conditions provided for by the current legislation.
2 In regard to third-country nationals residing in another EU/EEA country, an application for an authorisation of stay for work purposes must be submitted to the competent regional authority.
It must be considered that the single permit issued by the other country determines right of stay in Belgium for a period of 90 days in any 180-day period. Third-country nationals holding such a permit, are not required to return to their home country (i.e. country of nationality) to apply for a long stay visa type D. They may switch short stay to long stay directly in Belgium or apply for a D visa (long stay visa) in the country of residence (the latter option is advisable if they are accompanied by family members).
Certain particular cases must be addressed:
- Holders of a long-term EU residence permit issued by another Member State (by virtue of Directive 2003/109/EC):
In the Walloon Region, they are exempt from the work authorisation after working in Belgium, holding a single permit, during an uninterrupted period of twelve months.
In the Flanders Region and in Brussels, the same exemption applies after working during an uninterrupted period of twelve months, holding a single permit, only if the authorisation of work was issued for a shortage job.
Family members of long-term residents are beneficiaries of the same exemption (i.e. if the principal is eligible for such an exemption).
- Cross-border workers
Cross-border workers are excluded from the scope of the Single Permit Directive. The legislation currently into force will be applying.
- Holders of an EU Blue Card issued by anther EU country
Depending on the particular case, EU Blue Card holders must lodge an application for a single permit or an EU Blue EU Card in Belgium.
3 Third-country nationals residing out of the EU/EEA territory and intend to stay and work for a duration exceeds 90 days in any 180-day period, are bound by the obligation to hold a single permit in order to commence employment. The employment contract must contain a suspensive condition that defers the execution of the contract to the obtention of such permit.
Third-country nationals posted to Belgium
Third-country nationals posted by an undertaking established out to the EU/EEA hold a residence permit contains a reference to the access to the labour market, notably “limited access”. It must be noted that the access is limited to work at the premises of the company for which the authorisation of work has been issued.
Third-country nationals posted by an undertaking established in the EU/EEA territory, are exempt from work authorisation (by virtue of Article 56 TFEU). The exemption is subordinated to the criteria provided for by Article 2.14° Royal Decree of 9 June 1999 (as amended by the different regional authorities). However, if the duration of stay in Belgium exceeds 90 days in any 180-day period, a single permit with limited access to the labour market will be issued. A third-country national employed by an undertaking established in the EU/EEA, may provide services, on behalf of his/her employer, to one or several undertakings established in Belgium. The LIMOSA declaration must be filled in accordingly.
Determination of the regional competent authority
An application for a single permit will be lodged with the regional competent authority, determined considering the region where the employer (host company) is located and the region where the activity is carried out.
Provided that the employer (or host company) has different establishment units located in different regions, the place where the employee works most of the time is determinant.
Provided that such a place cannot be clearly ascertained, the place where the employer’ headquarter is located determines the regional competent authority.
Finally, if the employer or recipient of services has no establishment unit in Belgium, the place where the activity is carried out determines the regional competent authority.
Provided that the same employer, having several establishment units, attaches a little importance to the place where the activity will be carried out, it is advisable to determine the place of work considering practical aspects, such as the genuine processing delay by the regional competent authorities, and certain restrictive interpretations given by labour authorities to different legal concepts.
Documents to support the application will be lodged with the competent regional authority. The latter shall ascertain whether the application is receivable (i.e. all the documents required are submitted).
A notification to confirm receivability or address missing documents, will be sent within a maximum of 10 days of the day which the application is received by the competent regional authority.
Failure to provide the documents missing within 15 days of the request, will result in a decision of non-receivability.
A decision of non-receivability can be appealed only before the Council of State and as a consequence, practically, a new application along with all the required documents must be lodged.
The new legislation (federal and regional) provides for the list of mandatory documents must be provided along with the application lodged, and the documents that due to exceptional circumstances, independent of the applicant’s will, may be provided later in the course of the procedure (such documents are related to the residence aspect and a derogation from the Immigration Office is required).
Having regard to the above considerations, it does not make any sense to lodge incomplete applications.
It must be noted as well that, at any time, in the course of the procedure, failure to provide any document and/or complementary information within 15 days of the date of the request to provide such documents and/or information, will result in the rejection of the application.
The decision on the application will be made, within a maximum of four months, as of the date of receivability. Such delay can be extended in exceptional circumstances related to the complexity of the demand. In the latter case, the applicant must be informed.
Upon failure to make a decision within a maximum of four months of the date of receivability (eventually extended), the authorisations of stay will be deemed to be granted, under suspensive condition of authorisation of work granted by the regional authority.
Provided that (ideally), the processing delay by the regional authority and Immigration Office will not exceed two months (in aggregate), it is advisable to lodge applications at latest three months before the commencement of the employment (assignment) in Belgium.
Application for renewal of a single permit must be lodged at latest two months before the valid permit expires.
Applications lodged later due to circumstances independent of the applicant’s will, shall be considered.
It must be noted that where a refusal to issue an authorisation of work can be appealed in a first instance before the competent regional authority (i.e. Minister of Labour), the withdrawal of such an authorisation will be notified by the Immigration Office and can be appealed before the Council for Alien Law Litigations.
It is important to check whether your usual immigration service provider, has the legal capacity to bring such an appeal.
The competence for compliance inspections is shared between the federal state and the regions.
As laid down by Article 18 of the Social Criminal Code, social inspectors are empowered to monitor compliance with the provisions of such code and other related acts and decrees.
Article 11 Cooperation Agreement between the federal state and the regions coordinating policies on granting the single permit, provides for an interoperability of the compliance inspections. Federal and regional inspectors may ascertain infringements to both federal and regional legislation.
Third-country nationals intending to stay and work for a duration does not exceed 90 days in any 180-day period, are excluded from the scope of the new legislation.
The new legislation does not exempt third-country nationals from lodging an application for a long stay visa (where relevant), and from the obligation to register with the local administration of the place of residence (within eight working days as of the date of entry if the authorisation of stay was obtained abroad or of the date of notification if the authorisation was obtained in Belgium).