Regulatory framework and trends

Trends and developments

Have there been any notable recent trends or developments regarding business-related immigration in your jurisdiction, including any government policy initiatives?

On 2 February 2018 the federal state and the Belgian regions concluded a cooperation agreement coordinating their policies for granting authorisations of work and stay to third-country nationals intending to stay in Belgium for work purposes, as well for those who have been admitted for purposes other than work. Among other things, the cooperation agreement aims to:

  • establish a single procedure for the issuance of a single administrative act determining individuals’ right of stay for the purpose of work (and transpose into national legislation EU Directive 2011/98/EU);
  • enable the issuance of residence permits to third-country nationals who have been admitted to Belgium for purposes other than work which include information concerning their access to the labour market; and
  • lay the groundwork for the further implementation of:
    • the EU Intra-corporate Transferees Directive;
    • the EU Seasonal Workers Directive; and
    • the EU 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.

Implementation legislation has been enacted at the federal and regional level.

Domestic law

What legislation and regulations govern immigration in your jurisdiction?

“Belgium is a federal state comprising communities and regions” (the Constitution).

The decision-making powers are divided between the federal state, three communities and three regions.

The primary sources of immigration law are:

  • the Aliens Act (the Law of 15 December 1980) on the entry, stay, settlement and removal of foreign nationals, as amended;
  • the Royal Decree of 8 October 1981 implementing the Law of 15 December 1980;
  • the Foreign Workers (Employment) Act of 30 April 1999, to be abrogated with the exception of the provisions concerning au pairs;
  • the Act of 9 May 2018 on the occupation of foreign nationals in a particular situation of residence;
  • a royal decree implementing the Act of 9 May 2018, which will be enacted to provide conditions regarding foreign nationals in a particular situation of residence;
  • the Royal Decree of 9 June 1999 implementing the Foreign Workers (Employment) Act of 30 April 1999, as amended by several regional government decrees. At the federal level, this royal decree will remain in force only with regard to au pairs;
  • the regional governments will amend the current regional government decrees, amending the Royal Decree of 9 June 1999 (to date, the Flemish Government Decree of 1 June 2018, the Walloon Government Decree of 14 June 2018 and the Ministry of the German-Speaking Community Decree of 7 June 2018);
  • the Act of 5 March 2002 implementing EU Directive 96/71/EC and its enforcing directive, EU Directive 2014/67/EU, which concern the posting of workers in the framework of the provision of services;
  • the Programme Act of 27 December 2006 and the Royal Decrees of 28 March 2007, 31 August 2007, 19 March 2013 and 20 September 2017, which establish a mandatory declaration for foreign employees and self-employed workers posted in Belgium;
  • the Act of 6 June 2010 (the Social Criminal Code), as amended by the Act of 9 May 2018 (to cover foreigners in a particular situation of residence), which will be amended by the regional governments to reflect the division of legislative power between the federal state and the regions;
  • the Act of 24 July 1987, as amended by the Acts of 13 February 1998, 12 August 2000 and the Programme Act of 27 December 2012, which sets out the rules for the hiring out of workers;
  • the Aliens Self-Employment Act of 19 February 1965 and the Royal Decrees of 2 August 1985 and 3 February 2003, as amended by regional government decrees;
  • the Act of 28 June 1984 (the Nationality Code), as amended by the Act of 4 December 2012 with a view to making the acquisition of nationality neutral from an immigration point of view;
  • the Act of 3 July 2005 on volunteers’ rights, as amended by the Act of 9 May 2018; and
  • the cooperation agreement between the federal state and the regions coordinating their policies on granting single permits, as concluded on 2 February 2018.

International agreements

Has your jurisdiction concluded any international agreements affecting immigration (eg, free trade agreements or free movement accords)?

Belgium is an active player in international cooperation, with the aim to strengthen legal migration.

It is a member of the European Union, the European Economic Area and the Schengen Agreement.

Belgium has concluded bilateral social security agreements and conventions for the avoidance of double taxation with different countries around the world.

Belgium is a member of the International Commission on Civil Status and has ratified nine conventions facilitating international cooperation in civil-status matters and the exchange of information between civil registrars.

Belgium has also ratified the European Convention on the Abolition of Legalisation of Documents executed by Diplomatic Agents or Consular Officers.

Regulatory authorities

Which government authorities regulate immigration and what is the extent of their enforcement powers?

The Federal Public Service Home Affairs – in particular, the Immigration Office – is responsible for matters relating to the entry, stay, settlement and removal of foreign nationals.

The Federal Public Service Employment, Labour and Social Dialogue is responsible for overseeing the working conditions of foreigners in a particular situation of residence.

Diplomatic missions (the Federal Public Service Foreign Affairs and the Foreign Trade and Development Cooperation) receive visa applications and issue visas in liaison with the Immigration Office.

Local administrations (municipalities) – on behalf of the Federal Public Service Home Affairs and the General Direction Institutions and Population and under the scrutiny of the Immigration Office – are responsible for the control of residence permits and the issuance, renewal, extension, replacement and cancellation of foreigners’ permits.

Legislative power relating to the employment and self-employment of third-country nationals is regionalised. The federal government maintains regulatory power over rights derived from particular situations of residence – notably, where the main reason of entry is not employment. The regional authorities in this regard are:

  • the Ministry of Brussels-Capital Region (Employment and Mixed Economy Policy Directorate);
  • the Flemish Ministry Work and Social Economy (Departments of Economic Migration);
  • the Ministry of the Walloon Region (Directorate-General for the Economy, Employment and Research (Department of Employment and Vocational Training)); and
  • the Ministry of the German-Speaking Community (part of the Walloon Region).

The competent institutions for social security matters are:

  • the National Social Security Office (NSSO); and
  • the National Institute for the Social Security of the Self-Employed.

Since 1 July 2017, the inspection service of the NSSO and the Social Inspection have merged to form one single inspection service under the banner of the NSSO.

Can the decisions of these authorities be appealed?

Yes. Judicial review of decisions of public authorities can be provided by the Council of State through an annulment action (court of last instance).

Recent case law

Has there been any notable recent case law regarding immigration?

Belgium has been directly involved in several recent important European Court of Justice (ECJ) rulings.

In KA v Belgium (C-82/16), the ECJ confirmed settled case law and provided more clarity on the (derived) residence rights of family members of so-called ‘static EU citizens’. The ECJ ruled that, as a matter of principle, the right of residence in a host member state accorded by Article 20 of the Treaty on the Functioning of the European Union (TFEU) to a third-country national who is a family member of an EU citizen does not presuppose that the third-country national already has some other right of residence in the territory of the member state concerned. Further, the benefit of that right of residence must be accorded to a third-country national from the moment that the relationship of dependency on the EU citizen comes into being until such relationship ends.

In regard to the existence of a relationship of dependency capable of justifying a derived right of residence under Article 20 of the TFEU, the ECJ – summarising settled case law – provided a test of dependency, interpreting the so-called ‘substance of the rights’ test. Such a dependency must be “capable of justifying a derived right of residence under Article 20 TFEU”. Thus:

  • where the EU citizen is an adult, only exceptional circumstances will be considered to justify that “any form of separation of the individual concerned from the member of his family on whom he is dependent is not possible”; and
  • where the EU citizen is a minor, all of the specific circumstances must be considered with a view to the child’s best interests, including:
    • their age;
    • their physical and emotional development;
    • the extent of their emotional ties to each parent; and
    • the risks which separation from the third-country national parent might entail for the child’s equilibrium.

According to the ECJ, “the existence of a family link with that third-country national, whether natural or legal, is not sufficient, and cohabitation with that third-country national is not necessary, in order to establish such a relationship of dependency”.

In the landmark case Altun (C-359/16), the request for a preliminary ruling submitted by the Belgian Court of Cassation to the ECJ called into question the possibility to annul or disregard E 101 certificates (ie, Portable Documents A1). The ECJ ruling:

  • underlined the overriding value of the principle of prohibition of fraud and abuse of right expressed by the court’s settled case law; and
  • concluded that such documents can be disregarded by the court of an EU member state in which workers have been posted.

In Ibrahima Diallo v Belgium (C‑246/17), the ECJ clarified the period in which EU member states must adopt and notify decisions to issue residence permits to third-country nationals and family members of EU citizens and, in that context, the declaratory value of residence permits automatically granted.

The ECJ underlined that Article 10(1) of EU Directive 2004/38 provides that the right of residence of family members of an EU citizen who are not nationals of a member state must be evidenced by the issuing of a residence permit no later than six months from the date on which they submit the application. Consequently, member states are bound to:

  • examine the application;
  • adopt a decision; and
  • where the applicant qualifies for the right of residence on the basis of EU Directive 2004/38, issue a residence permit within a maximum of six months following the application.

The ECJ observed that where, in principle, a decision to automatically grant a residence permit falls within the scope of the procedural autonomy of the member states, such autonomy must be exercised in compliance with the principles of:

  • effectiveness (ie, rules must not impair the effectiveness of EU law); and
  • equivalence (ie, rules must not be less favourable than those governing similar domestic situations).

The automatic grant of residence permits impairs the effectiveness of EU law.

Business visitors

Visa requirements

In what circumstances is a visa required for business visitors?

A visa is required for business visitors not holding a passport issued by one of the countries referred to in Article 1(2) of Council Regulation 539/2001.

Restrictions

What restrictions are imposed on business visitors in terms of the work that they may undertake and their period of stay in your jurisdiction?

Business visitors may not work but may attend conferences, specialised seminars and business meetings. The authorised period of stay is 20 consecutive calendar days and a maximum of 60 days per calendar year. It must be distinguished between the short stay visa validity and the right to stay for business purposes (ie, carry out business activities).

The Comprehensive Economic and Trade Agreement (CETA) concluded by the European Union and Canada provides for more favourable conditions (ie, 90 days in any six-month period). The CETA also introduced the new category of business visitors for investment purposes (for which the maximum period of stay is also 90 days in any six-month period).

Annex 10D of the CETA sets out the short-term business visitor activities which are permitted under the agreement.

The CETA entered into force provisionally on 21 September 2017, pending the completion of the necessary ratification procedures. A genuine provisional implementation and further ratification by EU member states is pending the European Court of Justice’s (ECJ’s) ruling on a request referred to it by Belgium.

The proposal for a new EU blue card directive provides for the concept of short-term mobility (ie, entry and stay for the purpose of carrying out a business activity in one or several member states for up to 90 days in any 180-day period). It also provides for a ‘business activity’ to be autonomously defined as follows:

A temporary activity related to the business interests of the employer, such as attending internal and external business meetings, attending conferences and seminars, negotiating business deals, undertaking sales or marketing activities, performing internal or client audits, exploring business opportunities, or attending and receiving training.

However, the negotiations between the European Parliament and the European Council on the proposal for a new directive, which started in September 2017, are currently blocked.

Application and entry

How are business visitor visas obtained and what is the typical turnaround time?

The application must be lodged at the Belgium diplomatic mission (or mission having jurisdiction to receive such applications) in the country of residence or the country of nationality. The typical turnaround time is 15 days from the date of application.

Notably, an application for a short-stay visa is not merely a simple formality.

In a recent judgment (C‑403/16), the ECJ upheld the rights determined by EU law in the context of short-stay visa applications.

The case at issue concerned a Schengen visa application that was lodged in Morocco and rejected by the Polish consul due to the lack of certainty that the applicant would leave Poland before the visa’s expiry date.

The judgment has confirmed that the competent authorities of EU member states cannot refuse to issue a uniform visa by relying on a ground not provided for by the Visa Code. The ECJ ruled in favour of the right to an appeal procedure against decisions refusing visas, granting a judicial appeal at a certain stage of the proceedings.

However, the ECJ upheld that “in examining a visa application the national authorities have a broad discretion as regards the conditions for applying the grounds of refusal laid down by the Visa Code and the evaluation of the relevant facts”. This is a more nuanced position than that expressed by Advocate General Bobek, who clearly suggested that “there is no right to a visa under EU law”.

In light of ECJ case law and EU member states’ jurisprudence and policy, the following rights are granted to applicants for short-stay uniform visas:

  • the right to have an application fairly processed, exclusively relying on the grounds provided in the Visa Code; and
  • in case of visa refusal, the right to appeal under the procedural rules provided in the national legislation of each EU member state in accordance with the principles of equivalence and effectiveness. A judicial appeal must be granted.

The mere right to a visa under EU law cannot be invoked.

Are any visa waiver or fast-track entry programmes available?

Belgium is bound by the EU common visa policy for:

  • transit through the country;
  • intended stays of a maximum of 90 days in any 180-day period; and
  • transit through the international transit areas of airports located in the country.

The list of visa waiver countries is set out in Council Regulation 539/2001 as amended.

Visa facilitation agreements concluded by the European Union are binding on Belgium.

Fast-track and free-of-charge visas are issued to third-country nationals who are family members of EU nationals, to accompany or join the latter.

Short-term training

What rules and procedures apply for visitors seeking to undertake short-term training in your jurisdiction?

Currently, business visitors are not authorised to undertake training in Belgium.

Transit

In what circumstances is a transit visa required to pass through your jurisdiction? How is it obtained?

Nationals of the third countries listed in Annex IV of EU Regulation 810/2009 must hold an airport transit visa when passing through the international transit areas of airports situated on Belgian territory.

The categories of persons exempt from this requirement are provided in Article 3.5 of the regulation.

Airport transit visas are issued pursuant to Article 26 of the regulation.

Sponsored immigration

New hires

What sponsored visas or work permits are available to employers seeking to hire foreign nationals in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

As a matter of principle, authorisations to work are issued only to nationals of countries that have entered into employment agreements with Belgium. Such authorisations are subject to the labour market test.

National legislation provides for different categories of third-country nationals (including highly qualified workers) who are eligible for authorisation to work under terms that derogate from the labour market test. Such authorisations are not limited to nationals of countries that have entered into employment agreements with Belgium.

Third-country nationals who intend to stay for work purposes for more than 90 days in any 180-day period must lodge an application for a single permit (ie, single procedure).

Application and receivability

The single permit procedure will be initiated by the employer on behalf of the employee. Documents to support the application will be lodged with the competent regional authority.  The latter shall ascertain whether the application is receivable (ie, 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 on 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. 

Processing by authorities

Within a maximum of 15 days of the date of receivability, the regional authority may decide on the work aspect.

A negative decision made within the abovementioned delay will be notified to the employee and the employer by giving reason. 

A positive decision and the complete application lodged will be communicated to the Immigration Office. 

Receiving the (positive) decision and the application, the Immigration Office will decide on the residence aspect.  

Provided that the Immigration Office’s decision is positive, the employee and the employer will be notified by the latter of the final decision, on both the work and residence aspects.  

A negative decision on the residence aspect will be notified by the Immigration Office to the employee, by giving reason. The employer will be informed of such a decision.

Provided that the regional authority cannot make a decision on the work aspect within maximum 15 days of the date of receivability, a copy of the application will be communicated to the Immigration Office. The application will be processed in parallel by the administrations.

The Immigration Office must decide on the residence aspect within a delay of a maximum of 60 days. 

A negative decision will be notified to the employee by giving reason (the employer will be informed). 

A positive decision will be communicated to the regional authority. 

A negative decision by the latter will be notified to the employee and the employer and will void the positive decision made by the Immigration Office. 

A positive decision made by the regional authority will be communicated to the Immigration Office. The employee will be notified by the latter of the final (positive) decision on both aspects. 

Lastly, failure to make a decision on the residence aspect within a maximum delay of 60 days will result in the decision being deemed to be positive.

Overall processing delay

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 relating to the complexity of the demand. In the latter case, the applicant must be informed.

Failure to make a decision within four months of the date of receivability (eventually extended) will result in the authorisations of stay and work to be deemed to have been granted. Thus, the single permit will be issued to the applicant. However, in Ibrahima Diallo v Belgium (C‑246/17), the European Court of Justice ruled that the automatic grant of residence permits impairs the effectiveness of EU law.

Long-stay visas (ie, D Visas), issued to third-country nationals determine their right of entry and stay. However, they must be converted to residence permits.

Intra-company transfers

What sponsored visas or work permits are available to multinational employers seeking to transfer foreign employees to your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

Prior to the transposition of EU Directive 2014/66/EU, single permits and short-stay visas covering the right of work or long-stay visas are issued to third-country nationals posted in Belgium in the framework of an intra-corporate transfer, under the conditions provided for by national legislation for the posting of workers within the general framework of the provision of services.

However, pursuant to Article 288 of the Treaty of the Functioning of the European Union, an EU directive creates a binding obligation on member states to enact certain laws by a certain date. As EU Directive 2014/66/EU was due to be enacted by 29 November 2016, Article 21 thereof – which provides for the intra-EU short term mobility – satisfies the Van Gend en Loos test and as a consequence has direct effect. This direct effect determines the right of individuals to enforce the obligations created by the directive in the national courts. However, considering the estoppel reasoning, Belgium “may not rely, as against individuals, on its own failure to perform the obligations which the Directive entails” (C-148/78 Ratti (1979)).

Third-country nationals holding a valid intra-corporate transferee permit issued by an EU member state are entitled to stay in Belgium and work for any other entity that was established in Belgium and belongs to the same undertaking or group of undertakings for up to 90 days in any 180-day period, subject to the conditions set out in Article 21 of EU Directive 2014/66/EU.

Lastly, the Comprehensive Economic and Trade Agreement concluded with Canada provides for a parallel scheme.

Long-stay visas (ie, D Visas) issued to third-country nationals determine their right of entry and stay. However, they must be converted to residence permits.

Do any special rules govern secondments?

Intra-EU secondments are bound by the Act of 5 March 2002, which implemented EU Directive 96/71/EC and its enforcing directive, EU Directive 2014/67/EU, which concern the posting of workers in the framework of the provision of services.

As regards third-country nationals employed by an undertaking established in an EU member state and seconded to an undertaking established in Belgium, the Vander Elst exemption is provided for by the national legislation.

Undertakings established outside the European Union do not receive more favourable treatment than undertakings established in the territory of another member state.

Undertakings which are established outside the European Union and post highly qualified workers in that capacity are bound by the minimum wage threshold provided for by national legislation. Such a remuneration is deemed to represent compensation for the work carried out. Allowances paid for reimbursement of expenditure actually incurred on account of the posting (eg, expenditure on travel, board and lodging) cannot be considered a component of the minimum wage threshold.

Sponsor requirements and considerations

What are the eligibility and procedural requirements for employers to sponsor foreign employees?

National legislation provides no eligibility or procedural requirements for employers to sponsor foreign employees.

What ongoing reporting and record-keeping requirements apply to sponsors?

During the employment of third-country nationals, sponsors must:

  • check whether they hold valid single permits or other residence permits (authorisations of stay) that allow them to work;
  • keep available for inspection, at least during the term of the employment, a copy (or details) of the valid residence documents; and
  • declare the commencement and end of the employment (the so-called ‘Dimona’ declaration).

Before posting an employee to Belgium, employers must notify of the commencement of the assignment and designate a person to liaise with the competent authorities and send out and receive documents (the ‘Limosa’ declaration).

During the assignment and within one year of its completion, the designated person must keep and provide (where required) a copy of the letter of assignment, time sheets, copies of pay slips and proof of payment of wages.

The company making the posting, rather than the host company, is bound by the abovementioned obligations. However, in regard to the Limosa declaration, the undertaking making the posting and the recipient of services are jointly and severally liable.

The Belgium-based company must check whether any third-country national working on its premises holds a valid single permit or other residence permit (authorisation of stay) that allows them to work.

In what circumstances (if any) must the employer submit to resident labour market testing before hiring or transferring foreign employees? Do any exemptions apply?

As a matter of principle, the labour market test will be undertaken before a single permit or other residence permit will be issued to third-country nationals intending to stay and work for more than 90 days. In addition, such permits will be issued only to nationals of countries that have entered into employment agreements with Belgium.

Exemptions apply, such as for highly qualified workers (national scheme) and those eligible for the EU blue card, provided that the minimum wage threshold and the maximum duration of occupation set out in national legislation are complied with.

Are there any annual quota limits or restrictions on certain positions that can be filled by foreign nationals?

No quotas apply for work permits.

The ‘public service proviso’ provided by Article 45(4) of the Treaty on the Functioning of the European Union applies to positions that cannot be filled by foreign nationals.

Pursuant to Article 10 of the Constitution, only Belgian nationals are eligible for public employment. However, exceptions can be provided by law.

Federal administration and regional law provide the relevant exceptions considering the criteria set by the ECJ.

Employees of public enterprises are subject to general labour law, which provides no limitations based on nationality.

Are there any immigration exemptions or other special schemes for shortage occupations in your jurisdiction?

The regions set out the lists of shortages. The special exemptions which apply to shortage occupations mainly concern third-country nationals who hold a long-term residency permit issued by another EU member state.

How long does it typically take to obtain a sponsored visa? Is expedited visa processing available?

Short-stay visas are issued to business visitors within approximately 15 days of the application date.

Work visas (ie, long-stay type-D visas) are issued to employees within several working days.

Under national legislation, the delay for the issuance of D visas for family reunification is a maximum of nine months but can be longer in exceptional circumstances. The effective delay depends on whether the dependants are accompanying or joining the employee. Applications should be lodged at the same time (ie, employee and dependants) in order to be approved within a short delay. Where the dependants are joining the employee in Belgium, the right to family reunification cannot be enforced before the employee’s residence permit has been issued. In this case, D visa applications for family members are approved within several months of the date of application.

What rules govern the hiring of foreign third-party contractors?

To provide services in Belgium, self-employed third-country nationals must hold a professional card unless they are exempt under national legislation.

Third-party contractors established in one of the member states are beneficiaries of Articles 49 and 54 of the Treaty on the Functioning of the European Union with regard to the right of establishment and Articles 56 and 57 of the treaty with regard to the freedom to provide services. In context, the Law of 26 March 2010 implementing the EU General Services Directive must be cited.

What are the penalties for sponsor non-compliance with the relevant immigration laws and regulations?

Employers hiring foreign nationals in Belgium, posting foreign nationals to Belgium or merely hosting foreign nationals on their premises, are bound by EU law and national legislation.

Failure to comply will result in liability to administrative fines, criminal fines and, in certain circumstances, imprisonment. Other criminal penalties (eg, prohibition of exploitation, professional prohibition and closure of establishment) may also apply in exceptional circumstances.

Are there any other special considerations for sponsors in your jurisdiction?

National legislation provides for the conditions of employment of foreign nationals, as well as the penalties for breaching these provisions.

General employee requirements

Must sponsored employees meet any language requirements?

No. Employees need not demonstrate language proficiency in order to be admitted to work in Belgium.

Are sponsored employees subject to any medical checks?

Yes, in general, third-country nationals must undergo a medical examination unless they have been lawfully residing in Belgium for a minimum of two years.

Must sponsored employees meet any medical or other insurance requirements?

Third-country nationals employed in Belgium and their family members are subject to the local social security system. Therefore, they are entitled to local public health insurance.

Third-country nationals posted to Belgium must have health insurance to cover their health needs and repatriation in case of emergency. Where the posting country has entered into a bilateral agreement with Belgium in regard to health insurance or a social security agreement covers health insurance, the third-country national and his or her family members are entitled to healthcare in Belgium for the full period of posting at the expense of the posting country.

Are sponsored employees subject to any security or background checks?

Where the duration of stay exceeds 90 days in any 180-day period, third-country nationals must provide a police clearance certificate.

Are sponsored employees subject to any restrictions on studying or working second or volunteer jobs?

Authorisations to work issued to sponsored third-country nationals are valid for one employer only. A second job requires a second authorisation. In this context, the Council of State has confirmed that the Royal Decree of 9 June 1999 does not preclude the issuance of work permits for part-time roles.

Pursuant to Article 9 of the Law of 3 July 2005 as amended, third-country nationals who lawfully reside in Belgium and carry out volunteer work are excluded from the scope of the Law of 30 April 2009 and its implementing decrees. The Law of 3 July 2005 on volunteers’ rights was recently amended by the Law of 9 May 2018 in order to grant the right to carry out volunteer work to both third-country nationals admitted for work and those admitted for other purposes.

However, volunteer work is not currently a ground to gain residence in Belgium.

Are there any rules or standards governing the equivalence of sponsored employees’ foreign qualifications?

Only higher education qualifications are recognised in Belgium. Where the definition of ‘higher professional qualifications’ required for EU blue card applications is that provided under Article 2(h) of EU Directive 2009/50/EC, highly qualified workers hired under the national scheme must have obtained a four-year bachelor’s degree or higher education qualification that is relevant to the profession or sector specified in the work contract.

What are the penalties for employee non-compliance with the relevant immigration laws and regulations?

Administrative fines may be levied to EU, European Economic Area and Swiss nationals, as well as their dependents, for infringements such as:

  • failure to report presence to the local administration within 10 working days of the date of entry into Belgium if the duration of stay does not exceed three months; and
  • failure to initiate the local registration within three months of the date of entry if the duration of stay exceeds three months.   

In regard to third-country nationals, a clear definition of the concept of an ‘unlawful stay’ is provided in the ECJ’s ruling in Affum (2016):

Any third-country national who is present on the territory of a Member State without fulfilling the conditions for entry, stay or residence there is, by virtue of that fact alone, staying there illegally, without such presence being subject to a condition requiring a minimum duration or an intention to remain on that territory.

National legislation provides the rules relating to the removal of third-country nationals who overstay unlawfully.

Unsponsored immigration

Highly skilled individuals

What unsponsored immigration routes are available for highly skilled foreign nationals to seek employment in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

National legislation provides for the concept of highly qualified workers; professional experience is not recognised.

In principle, highly qualified workers are eligible for sponsored immigration routes only. Exceptions are not derived from the concept of highly qualified workers, but rather through routes that are available to them as well (ie, if they are first admitted for purposes other than work).

Entrepreneurs

What unsponsored immigration routes are available for entrepreneurs seeking to establish a business in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

Entrepreneurs seeking to establish a company in Belgium must refer to the national legislation regulating such matters. With regard to the right of entry, stay and settlement, entrepreneurs are bound by the same rules as other third-country nationals.

Investors

What unsponsored immigration routes are available for foreign investors seeking to invest in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

Investment alone is not a ground to gain the right to work and stay in Belgium.

Ancestry

Are any immigration routes open to foreign nationals based on ancestry or descent?

Yes. Immigration routes are open on the grounds of descent and, in certain cases, ancestry.

Other routes

Are there any other unsponsored immigration routes?

Yes. Other unsponsored immigration routes are available, including self-employment and long stay for private reasons.

Extensions, permanent residence and citizenship

Extensions and status changes

Can short-term visa or work permit holders switch to long-term visas? If so, what conditions and procedures apply?

Short-stay visas (C visas) cannot be converted to long-stay visas (D visas). However, certain categories of third-country nationals may switch from short stay to long stay.

Under what conditions can long-term visas be extended?

Long-stay visas cannot be extended.

Permanent residence

Can long-term visa holders apply for permanent residence? If so, what conditions and procedures apply?

Long-stay visas must be converted to local residence permits.

The main criteria that third-country nationals must satisfy in order to apply for permanent residence are:

  • a lawful and uninterrupted stay for a period of five years immediately preceding the application;  
  • a stable, regular and sufficient means of subsistence to meet their own needs and those of any dependants to avoid becoming a burden on the public welfare system; and
  • health insurance valid in Belgium.

Posted workers are not eligible for permanent residency.

Citizenship

Can long-term visa holders or permanent residents apply for citizenship? If so, what conditions and procedures apply?

Long-stay visas confer no further related rights. Residence permits issued to third-country nationals holding long-stay visas are considered in the context of applications for citizenship.

Dependants

Eligibility

Who qualifies as a dependant for immigration purposes?

With regard to family members of third-country nationals, the following categories qualify as dependants for immigration purposes:

  • a spouse or partner joining a third-country national coming to work in Belgium with whom he or she has contracted a registered partnership equivalent to marriage in Belgium;
  • any descendants and those of a spouse or partner who are under the age of 18, are unmarried and are joining a third-country national in Belgium – where the descendants of a spouse or partner are concerned, the latter must have custody of the children and where shared custody is concerned, the other parent’s consent is required; and
  • a partner with whom a third-country national coming to work in Belgium has contracted a partnership recognised by a law and the descendants of that partner who are joining the third-country national in Belgium before turning 18 years old, provided that they are not married. The partner must have custody of the children and where shared custody is concerned the other parent’s consent is required. However, the partners must provide evidence of a durable and stable relationship. Unless they have a common child, they must submit proof of legal cohabitation for an uninterrupted period of at least one year preceding the demand or proof that they:
    • have known each other for a minimum of two years, during which they have maintained regular contact (by phone, courier or email); and
    • have met three times in the two years preceding the demand, spending a minimum of 45 days in aggregate together.

Two other categories are also provided by national legislation.

More favourable conditions are provided for EU nationals and third-country nationals that are family members of EU nationals.

Unmarried partners of EU citizens may enforce particular rights provided for by national legislation pursuant to EU Directive 2004/38/EC and settled European Court of Justice (ECJ) case law.

First, unmarried partners who have registered a legal partnership recognised under national legislation as equivalent to marriage in Belgium qualify as family members.

Although an automatic right cannot be invoked by unmarried partners who have not concluded a legal partnership recognised under national legislation as equivalent to marriage, Belgium must facilitate the entry and residence of such partners. The facilitation regime is provided for by Article 3.2 of EU Directive 2004/38/EC and has been clarified by ECJ case law (eg, Rahman (C‑83/11)).

Pursuant to Articles 47/1 to 47/4 of the Law of 15 December 1980, such partners must provide proof of a durable and stable relationship by any means of evidence. Providing that the abovementioned criteria (ie, in case of a partnership recognised by “any law”) are met, the relationship will be deemed to be durable and stable. On the contrary, the application will be assessed on its merits, considering the duration, intensity and stability of the relationship.

Further, the ECJ’s judgment in Secretary of State for the Home Department v Rozanne Banger (C-89/17), Article 3.2(b) of EU Directive 2004/38/EC applies by analogy to unmarried partners of returning EU citizens.

Conditions and restrictions

What conditions and restrictions apply to bringing dependants to your jurisdiction (including with respect to access to labour markets, education and public benefits)?

Dependants who qualify as family members of EU or third-country nationals pursuant to national legislation and (where relevant) ECJ case law, may accompany or join the latter in Belgium.

Access to the labour market is facilitated for the following categories of third-country nationals:

  • spouses, recognised partners and children of third-country nationals admitted to stay for a duration exceeding 90 days in any 180-day period for the purpose of work;
  • spouses, recognised partners and children of long-term residents (pursuant to EU Directive 2003/109/EC) who have acquired that status in another member state; and
  • third-country nationals who are family members of EU nationals.

With regard to benefits, third-country nationals who are locally employed and their dependents are beneficiaries of EU Directive 2011/98/EU.

Posted workers and their dependents are beneficiaries of any social security agreements that the posting country has entered into with Belgium.