By Stefan Nerinckx, Partner – Employment Lawyer, Fieldfisher LLP Brussels
On January 1, 2019, the Belgian immigration landscape will, in principle, change considerably. At that time, the regional and federal governments will finally implement the EU Single Permit Directive (2011/98). Consequently, the regional and federal authorities will need to work closely together to issue the new single permit, a combined work and residence permit issued through a single application procedure. The issuance of work permits is currently a regional power, while the federal government is responsible for the delivery of residence permits. It should be noted that implementation of the new permit is a prerequisite for the implementation of other European directives introducing new single permits for specific categories of foreigners: intra-corporate transferees, trainees, students and researchers. This article aims to clarify the procedural and practical implications of the single permit application process.
Implementation of the Single Permit in Belgium
The single permit results from the implementation of a European Directive (2011/98) which introduced a single application procedure to allow third-country nationals (i.e. those who are not nationals of an EEA country or Switzerland) the right to reside and work in an EU Member State on the basis of a single permit. The single permit is meant to replace separate residence and work permits issued through distinct procedures.
The single permit was originally supposed to be implemented in all EU Member States by the end of 2013, with the exception of the UK, Ireland and Denmark. Given the specific situation of Belgium – the separation of competences between the federal and regional governments, with the former responsible for granting residence permits and the latter work permits – it experienced particular challenges in the implementation process. In that respect, a number of cooperation agreements have been signed between the various authorities, and the single permit application procedure is now set to be introduced on January 1, 2019. However, we still expect one final set of legislation to be published to be certain the new regulation will take effect as from January 1, 2019.
As result of the single permit, A, B and C work permits will be abolished in the vast majority of cases.
Single application process
The starting point in the single permit application procedure will be the submission to the competent regional employment authority of a complete application file, including supporting documents related to both employment and residence. Thus, the file will become more comprehensive as documents such as a certificate of good conduct will form part of the initial documentation to be provided to the authorities. We estimate that it will take around 1 to 1.5 months to gather the necessary documents to apply for a single permit.
The regional employment authority is responsible for taking a decision on the work authorization and will forward the file to the Aliens Office (Federal Public Service for the Interior) for a decision on the residence aspect.
The authorities will keep one another informed of their respective decisions and inform the applicant of their final decision. In the event of a positive decision, the applicant can collect the single permit at his or her local municipality, if already residing in Belgium. If the applicant does not reside in Belgium, he or she must apply for and obtain a visa from the Belgian Embassy/Consulate in his or her country of residence and then collect the single permit from the local municipality upon arrival in Belgium.
The application for the single permit can be based on either employment on the Belgian territory, or valid residence in Belgium.
The single permit is only available if the period of employment in Belgium will exceed 90 days. If the period of employment in Belgium will not exceed 90 days, it will still be necessary to apply for a B work permit. The application must be made by the employee if the authorization to be employed on the Belgian territory is for an indefinite period, or by the employer if the period of employment on the Belgian territory is limited in time.
Different rules exist regarding the place of application for the permit, which can be either the place where the employee normally works, the place where the employer has its base, or the place where the employee will be employed. It should be noted that there is no choice in this regard as the legislation determines where and in which cases a permit needs to be applied for.
Once the place of application has been determined, the employee or the employer needs to apply for the permit with the regional authorities. For highly qualified employees, the following documents will probably have to be provided: the application form, a copy of the applicant's passport, employment contract, diplomas, certificate of good conduct, health care insurance (still to be confirmed), medical certificate and, for a secondment, the secondment contract and a Certificate of Coverage for social security purposes (or application for this certificate). Furthermore, a non-refundable fee will have to be paid (amount still to be determined by the Regional Agencies).
Once the file has been submitted, the regional authority will analyze whether the application is complete. If the application is submitted to the wrong authority, the file will be forwarded to the correct one by the authorities itself. If the file is incomplete, the missing documents will need to be submitted within 15 days after the applicant has been notified of this fact. If the file is complete, it will be sent to the Aliens Office for approval of the residence on the Belgian territory. Simultaneously, the regional authority will verify the documents and requirements for the grant of a work permit, and the Aliens Office will conduct a security screening of the applicant. A final decision must be taken by the authorities within four months from the decision finding the file to be complete (if the decision is not taken within these four months, the single permit will be deemed to have been authorized). It should be noted that different outcomes are possible. For instance, the Aliens Office could approve residence in Belgium, but the regional authorities could find that the requirements to work in Belgium are not complied with or vice versa. If both authorities take a positive decision, the single permit will be issued.
An application for renewal must be made two months prior to expiry of the single permit's period of validity.
Changes in practice
In Belgium, the introduction of a single permit and a single application procedure will entail significant changes to the framework that regulates the authorization to reside in Belgium for work purposes. As mentioned, the single application procedure will apply when an individual expects to reside in Belgium for work purposes for longer than 90 days.
Certain categories of persons can apply to work in Belgium on the basis of valid residence in Belgium (based on the Royal Decree of September 2, 2018 that contains all categories that may work on the basis of their residence document). When the Belgian residence of a foreigner is not based primarily on employment, no additional application for a work authorization should be required, and a reference regarding access to the labor market will be made on the permit.
As such, in practice, certain types of work permits will be abolished, such as the C permit, currently issued for students, refugees and others. At the same time, certain categories of foreign workers currently exempt from the work permit requirement, such as researchers, will be required to go through the single application process prior to taking up employment in Belgium.
It is expected that the application process for a single permit will take longer than the current application procedure for a B permit for managerial or highly qualified employees. Gathering the necessary documents alone will take three to six weeks. In addition, the authorities will have 4.5 months to take a decision on the single permit (in total, taking the period the authorities will check whether the file is complete into account). Thus, in order to apply for a single permit in early 2019, it is necessary to start gathering the documents now, although not every detail is yet clear for the application to be made.
Moreover, companies that wish to send employees to work in Belgium right away should bear in mind that a certificate of good conduct, which generally takes four to six weeks to obtain, will need to be provided to the authorities at the start of the process.
Finally, it is unclear how well the federal and regional authorities will cooperate together and whether they will efficiently liaise.
AmCham Belgium encourages the different authorities to facilitate the application of the single permit so foreign companies are able to guarantee ongoing business. The delays to obtain a work permit are at present acceptable and, for the sake of the Belgian economy, we strongly suggest this continue when the single permit legislation becomes applicable. AmCham Belgium, with the help of its members, will monitor the application time and track possible hurdles in the application process.