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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?
The Royal Decree of March 9 2017 and two Ministerial Decrees of April 21 2017 concerning residence in Belgium are recent corporate immigration-related developments that must be upheld. The royal decree amends several other royal decrees and aims to strengthen the rule of law determining the concept of ‘genuine main residence’. Among other things, it clarifies the concept of ‘temporary absence’ from main residence and lays down assessment criteria and time limits.
The law imposing the newcomers' declaration must also be upheld. Third-country nationals who intend to stay in Belgium for more than 90 days must sign an integration contract. Refusal to sign the declaration will result in denial of authorisation to stay. Failure to make a reasonable effort to integrate in Belgium can be grounds for withdrawal or refusal to renew the residence permit. The obligation to sign is yet to become effective; however, the obligation to prove integration is already applicable. Where the exercise of a professional activity constitutes a reasonable effort to integrate, third-country nationals who are economically active are unaffected. However, their family members must prove reasonable effort to integrate in Belgium. Family members of EU nationals and other categories of third-country nationals are exempt.
What legislation and regulations govern immigration in your jurisdiction?
Belgium is a federal state comprising communities and regions” (the Belgian Constitution). The decision-making powers are divided between the federal state, three communities and three regions.
On July 1 2014 the sixth State Reform entered into force and, as a consequence, a number of federal competences have been transferred to the regions and communities.
The main primary sources of immigration law are as follows:
- the Aliens Act (Law of 15 December 1980) on entry, stay, settlement and removal of foreign nationals;
- the Royal Decree of October 8 1981 implementing the Law of December 15 1980;
- the Foreign Workers (Employment) Act of April 30 1999;
- the Royal Decree of June 9 1999 implementing the Foreign Workers (Employment) Act of April 30 1999, amended by several regional government decrees;
- the Law of March 5 2002 implementing EU Directive 96/71/EC and enforcing EU Directive 2014/67/EU of the European Parliament and of the Council concerning the posting of workers in the framework of the provision of services;
- the Programme Law of December 27 2006 and Royal Decrees of March 28 2007, August 31 2007 ,March 19 2013 and September 20 2017 ,establishing a mandatory declaration for foreign employees and self-employed workers posted in Belgium;
- the Social Criminal Code (Law of June 6 2010);
- the Law of July 24 1987 amended by the Laws of February 13 1998 and August 12 2000, and the Programme Law of December 27 2012 on hiring out workers;
- the Aliens Self-Employment Law February 19 1965, and Royal Decrees of August 21985 and February 3 2003 as amended by regional government decrees; and
- the Belgian Nationality Code (Law of June 28 1984) amended by the Law of December 4 2012 with a view to making the acquisition of nationality neutral from an immigration perspective.
EU regulations such as the Visa Code, the Schengen Borders Code and the Regulation on the Coordination of Social Security Systems are also binding on Belgium.
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.
In addition, Belgium has concluded bilateral social security agreements with 26 countries and conventions for the avoidance of double taxation with 88 countries.
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.
Which government authorities regulate immigration and what is the extent of their enforcement powers?
The Federal Public Service Home Affairs, notably the Belgian Immigration Office, is responsible for matters relating to the entry, stay, settlement and removal of foreign nationals.
The diplomatic missions of the Federal Public Service Foreign Affairs, Foreign Trade and Development Cooperation receive visa applications and issue visas in liaison with the Belgian Immigration Office.
Local administrations (municipalities) control residence and issue, renew, extend, replace and cancel foreigners’ residence permits on behalf of the Federal Public Service Home Affairs, General Direction Institutions and Population and under the scrutiny of the Immigration Office. The local administrations are also responsible for updating the national register of natural persons.
Legislative power relating to work permits for employed workers and professional cards for self-employed workers is regionalised. The federal government regulates rights derived from residency (eg, work permits for asylum seekers and students, and professional card exemptions). The regions that are authorised to apply, control and enforce work permits and professional cards 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, which has delegated the power to issue work permits and professional cards).
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.
On July 1 2017 the NSSO inspection service and the Social Inspection merged to become one inspection service under the banner of the NSSO.
Can the decisions of these authorities be appealed?
Judicial review on decisions of public authorities can be provided by the Council of State through an annulment action.
Recent case law
Has there been any notable recent case law regarding immigration?
On September 25 2017 the European Commission referred Belgium to the European Court of Justice for failing to fully implement the EU Single Permit Directive (2011/98/EU). The first referral on November 19 2015 was put on hold in April 2016.
Following the sixth State Reform, the laborious implementation procedure was discontinued by the Council of State. The council concluded that such implementation requires the adoption of a cooperation agreement between the federal state and the regions.
On September 8 2017 the Federal Council of Ministers approved a draft of the cooperation agreement and the draft legislation approving such agreement.
To enter into force, the cooperation agreement must be ratified by the concerned authorities, after which the national legislation will be amended on a federal and regional level.
Pursuant to Article 260(3) of the Treaty on the Functioning of the European Union, the European Commission has proposed that Belgium be ordered to pay a penalty of €70,828.80 per day from the date on which judgment is delivered.
Belgium will likely adopt the national measures required to transpose the obligations under the directive before a judgment is delivered.
However, once the judicial stage has been initiated, the commission will remain entitled to a judgment even if Belgium has complied. One reason why the commission may continue with the action is to establish the liability and provide the basis for claims by individuals (Commission v Greece (1988)).
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.
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.
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.
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.
What rules and procedures apply for visitors seeking to undertake short-term training in your jurisdiction?
Business visitors are not authorised to undertake training in Belgium.
The Royal Decree of June 9 1999 provides the different training categories, some of which are work permit exempt.
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.
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 of employment are issued to employers seeking to hire nationals of third countries that have entered into employment agreements with Belgium. Such authorisations are subject to the labour market test.
Article 9 of the Royal Decree of June 9 1999 provides the different categories of third-country nationals (including highly qualified workers) who are eligible for a work permit under terms that derogate from the labour market test.
Authorisations of employment issued pursuant to Article 9, are not limited to employers seeking to hire nationals of third countries that have entered into employment agreements with Belgium.
Article 2 of the decree provides for certain work permit exemptions.
Another available category is the EU Blue Card scheme, which implements EU Directive 2009/50/EC. The eligibility criteria vary depending on the relevant category.
Applications must be lodged with the competent labour authority. An authorisation of employment will be issued to the employer and a work permit to the employee.
Long-stay visas (D visas), issued to third-country nationals on the grounds of work permits or work-permit exemptions, determine the right of entry and stay. However, they must be converted to local residence permits.
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?
Under national legislation, the concept of transfer is equal to secondment (posting). Transfer in the sense of the L1 US visa is not provided for by national legislation.
Article 9 of the Royal Decree of June 9 1999 provides the different categories of third-country nationals (including highly qualified workers) who are eligible for work permits in the capacity of posted workers.
Article 2 of the decree provides for certain work permit exemptions.
Belgium is yet to implement the EU Intra-Corporate Transfer Directive (2014/66/EU). However, the present legislation makes no distinction between posting within international groups of companies and posting to customer sites. In short, the category of third-country nationals posted to Belgium covers all posting categories.
The eligibility criteria vary depending on the relevant category. Applications must be lodged with the competent labour authority. An authorisation of employment will be issued to the employer and a work permit to the employee.
Long-stay visas (D visas), issued to third-country nationals on the grounds of work permits or work permit exemptions, determine the right of entry and stay. However, they must be converted to local residence permits.
Do any special rules govern secondments?
Intra-EU secondments are bound by the Act of 5 March 2002 implementing EU Directive 96/71/EC and the enforcing EU Directive 2014/67/EU of the European Parliament and of the Council concerning the posting of workers in the framework of the provision of services. Undertakings established outside the Community do not receive more favourable treatment than undertakings established in the territory of another member state.
Undertakings established outside of the European Union and posting highly qualified workers in that capacity, are bound by the minimum wage threshold provided by Article 9.6° of the Royal Decree of June 9 1999. Pursuant to Article 37/2 of the decree, the minimum wage threshold is deemed to represent the compensation for the work carried out in the sense of settled European Court of Justice (ECJ) case law (eg, Isbir (C-522/12)). Therefore, allowances paid for reimbursement of expenditure actually incurred on account of the posting (eg, expenditure on travel, board and lodging) cannot be considered a part of the minimum wage threshold provided by Article 9.6° of the decree.
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. Authorisation of employment can be denied or withdrawn under Articles 34 and 35 of the Royal Decree of June 9 1999, mainly where the employer fails to comply with the legal and regulatory obligations relating to the occupation of workers.
What ongoing reporting and record-keeping requirements apply to sponsors?
Before hiring and during the employment of third-country nationals, sponsors must:
- check whether the third-country national holds a valid residence permit or authorisation of stay;
- keep available for inspection, at least during the term of employment, a copy or details of the residence permit or any other valid residence document; and
- notify of the commencement and end of 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 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 mustcheck whether any third-country national working on its premises holds a valid residence permit or authorisation of stay.
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, authorisations of employment are subject to the labour market test.
Article 9 of the Royal Decree of June 9 1999 provides the different categories of third-country nationals who are eligible for a work permit under terms that derogate from the labour market test.
Temporary authorisations of employment issued under the EU Blue Card scheme are exempt from the labour market test.
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?
Lists of shortage occupations are held by the regions.
Holders of a long-term residence permit issued by another member state (pursuant to EU Directive 2003/109/EC) who are not beneficiaries of the derogation from the labour market test based on another ground, are exempt from such test for employment in a shortage occupation.
Authorisations of employment are issued within five working days and a work permit exemption will apply after an individual has worked in Belgium while holding a type-B work permit for an uninterrupted 12-month period.
Authorisations of employment are not limited to employers seeking to hire nationals of third countries that have entered into employment agreements with Belgium.
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 March 26 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.
A foreign national’s conditions of employment are provided by the Social Criminal Code and related acts and decrees. 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.
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. Before being admitted to work, 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?
Type-B work permits issued to sponsored third-country nationals are valid for one employer only. A second job requires a second work permit. In this context, the Council of State has confirmed that the Royal Decree of June 9 1999 does not preclude the issuance of work permits for part-time roles.
Pursuant to Article 9 of the Law of July 3 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 April 30 2009 and its implementing decrees.
However, volunteer work is not 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.
On December 7 2017 the Belgian government submitted to the Chamber of Representatives (the lower chamber of the Belgian Federal Parliament) a draft legislation amending the Law of December 15 1980 and partially implementing EU Directive 2008/115/EC. By analogy with the definition of ‘unlawful stay’, the draft legislation provides the following definition of ‘unlawful entry’ pursuant to the ECJ 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.”
In light of ECJ case law, the draft legislation clarifies the criminal penalties that can be imposed against illegally entering or staying third-country nationals. These penalties do not preclude the issuance and execution of return orders.
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. (eg, a type-C work permit issued to an asylum seeker who is a highly qualified worker).
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.
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 only is not a ground to gain the right to work or stay in Belgium
Are any immigration routes open to foreign nationals based on ancestry or descent?
Yes. Immigration routes are open on the grounds of descent and ancestry.
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. Work-permit holders may switch from short stay to long stay.
Under what conditions can long-term visas be extended?
Long-stay visas must be converted to local residence permits and cannot be extended.
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; and
- 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.
Posted workers are not eligible for permanent residency.
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.
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.
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 that qualify as family members of EU nationals or of third-country nationals pursuant to national legislation and (where relevant) European Court of Justice case law may accompany or join the latter in Belgium.
Access to the labour market is facilitated as follows:
- Spouses, recognised partners and children of third-country nationals admitted to work and stay in Belgium have access to the labour market, but are not exempt from obtaining a work permit. About a category eligible for a work permit on derogation of the labour market test, not limited to nationals of countries that have entered employment agreements with Belgium, and where about highly qualified workers, not bound by the minimum wage threshold laid down for that category.
- 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 are work permit exempt in Belgium, are eligible for the same exemption.
- Third-country nationals and family members of EU nationals have unrestricted access to the labour market if they accompany or join the EU national.
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.