by Rimma Abadjan, Attorney and Associate, & Jo Antoons, Attorney and Managing Partner at Fragomen
In January 2019, Belgium implemented the EU Single Permit Directive for non-EU citizens seeking to work in Belgium for more than 90 days. The Single Permit combines work and residence authorization into a single document, issued through a single application procedure.
The introduction of the Single Permit was a step forward, yet substantial challenges remain for the business community in Belgium due to the lengthy procedures and lack of legal certainty. Since the Single Permit application requires both work and residence authorization to be approved before non-EU nationals start or continue their employment in Belgium, many such nationals risk their legal status lapsing during the processing period, leaving employers exposed to non-compliance risks due to the delays.
Single Permit in Belgium as of January 2019
The processing times for the single application procedure are longer than initially expected, due to a number of factors. First, it can be rather time-consuming to gather the residence-related documents, such as the police clearance certificate, which are necessary for the application. Second, the implementation of the Single Permit requires cooperation between various levels of government, which can result in significant processing delays.
As a reminder, the regional employment authorities are responsible for making decisions on work permits, whereas the Immigration Office – a federal institution – decides on the right to reside. In the single application procedure, institutions at both levels – federal and regional – must coordinate their decisions as both work and residence authorization must be approved before foreign nationals can start or continue their employment in Belgium. An increasing workload has resulted in a backlog on single permit applications, in particular, at the Federal Immigration Office.
Renewal applications face specific challenges
Long processing times oblige employers and non-EU workers to postpone the start of employment in Belgium. For renewal applications, this creates particular challenges as these nationals risk their legal status lapsing during the processing period leaving employers exposed to non-compliance risks.
According to the strict interpretation of the legislation, non-EU workers who have no valid work permit and who have not received final approval of their pending Single Permit application must cease their activities, as continuous employment would raise the risk of non-compliance. Moreover, foreign workers’ residency in Belgium is covered by a temporary residence document, but this is not a travel document and so they are restricted from travelling after the expiry of their residence card.
The regional and federal governments are aware of the challenging situation created by long processing times, and they have announced measures to address these issues. Regional authorities in Flanders, Brussels and Wallonia have taken different approaches.
Flanders has passed a policy that allows foreign nationals employed in the region to continue their employment while their Single Permit application is pending with the Federal Immigration Office. A work permit is delivered simultaneously with the work authorization approval for the Single Permit application. This additional work permit covers the period between the expiry date of the work permit and the expiry date of the residence permit of the foreign national.
The Brussels region has not taken a similar approach, but has confirmed that labor inspections should not result in the imposition of sanctions in cases where the employers have fulfilled their legal obligations and filed the applications in a timely manner.
The Walloon Government has not yet confirmed its approach to the problem, which inevitably results in legal uncertainty for companies based in that region.
While federal employment inspectors have the authority to sanction illegal employment, the principles of good governance must be respected with regard to diligent employers which should not therefore be sanctioned for administrative delays. AmCham Belgium welcomes the solution implemented by the Flemish Government, which offers legal certainty to employees and companies.
The Federal Immigration Office is increasing staff numbers in order to process Single Permit applications more quickly across the country. In the future, this should result in significantly fewer lapses in foreign nationals’ statuses and an opportunity to start employment sooner in the case of first applications.
AmCham Belgium’s Immigration Taskforce, chaired by Jo Antoons, is closely monitoring the implementation of the Single Permit in Belgium. In mid-June, AmCham Belgium sent a letter to government leaders and the political party study centers asking for pragmatic interim solutions to these processing delays to be found even before new governments are formed.
About the authors
Rimma Abadjan is an Associate and Attorney in Fragomen’s Brussels office. She works with the Belgian Inbound team and assists corporate clients from a variety of different industries with their corporate immigration needs and compliance. You can contact her at: Rimma.Abadjan@Fragomen.com.
Jo Antoons is an Attorney and Managing Partner of Fragomen’s Brussels office. She is responsible for managing corporate immigration compliance and advisory work for Belgium, the Netherlands and Luxembourg. You can contact her at: JAntoons@Fragomen.com.