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A general introduction to immigration law and policy in Belgium

A general introduction to immigration law and policy in Belgium

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Introduction to the immigration framework

The Belgian statutory immigration framework has been shaped by the country’s features and constraints. Belgium is a small EU Member State, easily accessible from all the world’s major business hubs and providing a geographically convenient base for foreign individuals and companies engaged in business on the territory of the European Union.2

From a policy perspective, this means that Belgian immigration rules must address the objective need for streamlined access for non-Belgian employees and self-employed persons, without disrupting the country’s labour market and public finances, at both the national and local levels. Experience indicates that Belgium has been successful in developing and applying an evolving set of – consistent and stable – rules for dealing with corporate immigration, even if certain processes may appear quite intricate and be perceived less positively. In that regard, and in the context of the transferred legislative powers over economic migration in the regions since mid 2014, authorities and stakeholders are aware of the importance of continually improving the applicable rules and processes.

i Legislation and policy

Belgium is a federal state composed of three regions (Flanders, Wallonia and Brussels) and three communities (Dutch, French and German-speaking) in which (corporate) immigration legislation is currently enacted at federal and regional levels. In light of constitutional changes introduced by the Special Act of 6 January 2014 on the Sixth State Reform (effective 1 July 2014), all powers pertaining to economic migration have been transferred from the federal government to the regional governments, meaning the legal framework is progressively adapted by regional pieces of legislation.

The most relevant pieces of legislation are the Foreigners Act of 15 December 1980 (and its implementing Royal Decree of 8 October 1981), providing the general immigration framework, and the Foreign Workers Act of 30 April 1999, as modified by the applicable regional lawmakers3 (and related implementing decrees) on corporate immigration aspects. Other relevant legislation includes the Foreign Self-Employed Persons Act of 19 February 1965, as modified by the applicable lawmakers (and related implementing decrees),4 governing the immigration status of foreign directors and self-employed persons in Belgium, and the LIMOSA (i.e., prior administrative notification) provisions contained in the Omnibus Act of 27 December 2006 and its implementing decrees, dealing with the mandatory notification requirements when carrying out self-employment or employment activities in Belgium. It is also important to bear in mind that the Belgian courts and authorities are often confronted with legal arguments based on EU or international norms, with which they are therefore quite familiar.

In corporate immigration matters, the above-mentioned legislation is applied under the authority of regional bodies (see below), which may result in differences in approach justified by local labour market considerations.

Although mostly in line with that of other EU Member States, Belgium’s corporate immigration policy has a number of distinct features:

  1. relative neutrality with regard to the operational setup proposed by applicants, which are arguably less limited in their choice of employment options than in other EU Member States;
  2. subtle distinctions between partial and full waivers resulting in, at first glance, an intricate, yet coherent, three-tier system: the regular application process, which requires a labour market test; the regular application process with a waiver of certain requirements, such as the labour market test; and a full waiver of the work permit requirement;
  3. the possibility of gradual access to the status of permanent resident (and eventually EU long-term resident) when developing professional activities in Belgium; and
  4. the importance (and verification) of proper compliance with other rules applicable to the proposed situation, such as mandatory employment, social security and tax rules.

These specific features arguably provide a certain degree of flexibility for applicants in the short term, while rewarding those considering longer-term professional activities in Belgium. This approach is generally perceived as attractive to applicants and corporate immigration stakeholders, without placing an undue burden on Belgium’s labour market and public finances.

In view of the foregoing, Belgium, like most other members of the Schengen Area,5 distinguishes between:

  1. nationals from European Economic Area (EEA)6 Member States and Switzerland (EEA and Swiss nationals), nationals from the UK (UK nationals) and other nationalities (non-EEA or non-Swiss nationals, or third-country nationals);
  2. stays of less than three months (short stay) or longer than three months (long stay); and
  3. the main applicant and accompanying dependants.7

ii The immigration authorities

A distinction must be made between:

  1. the immigration authorities in charge of visa and residence permits for non-Belgian nationals (the immigration authorities, that is, the Immigration Office, a division of the Federal Public Service for Home Affairs, which is organised at the federal level and accessible abroad via the Belgian consulates); and
  2. the authorities in charge of economic aspects (the economic authorities, that is, at the regional level, also accessible abroad via the Belgian consulates).

For corporate immigration matters, both the immigration and economic authorities must be involved, which may create some confusion for first-time applicants. The authorities are cognisant of the intricacy of certain application processes and, with a view to streamlining these processes, do their best to communicate clearly on their respective websites.8 Experience also shows that the authorities are efficient in their processing of standard corporate immigration cases and have a history of structurally improving these processes, which demonstrates their willingness to meet the legitimate expectations of corporate immigration stakeholders and reinforces Belgium’s attractiveness as a convenient business hub at the heart of the EU.

Different levels of authorities are entrusted with monitoring compliance, from government agencies9 to the local police. In that context, the federal and regional authorities, as well as any other stakeholders, benefit from the assistance and expertise of the autonomous public agency Myria (formerly known as the Federal Centre for Migration) in monitoring and analysing the immigration policies in place.

iii Exemptions and favoured industries

As mentioned above, Belgium has a de facto three-tier system:

  1. the regular application process requiring a labour market test;
  2. the application process with a waiver of certain requirements (such as the labour market test) (fast-track processing); and
  3. a full waiver of the work permit requirement, allowing (temporary) employment without prior authorisation (work permit waiver).

In corporate immigration matters, the regular application process with a labour market test is gradually becoming the exception rather than the rule. Indeed, the regional authorities in Belgium are aware of the importance, in the eyes of corporate immigration stakeholders,10 of predictability regarding the outcome and duration of processing (which is difficult to ensure when a labour market test is applied).

In this context, the regional authorities have developed a coherent approach that can be summarised as follows:

  1. fast-track processing for certain categories of individuals deemed to make local businesses more competitive (e.g., highly qualified individuals,11 executives,12 specialised technicians supporting imported infrastructure and equipment;13 intra-company transferees (ICTees)14), or to enhance international visibility and the development of local businesses (e.g., individuals completing internships,15 attending special training in the framework of export-oriented sales contracts,16 attending non-productive training sessions at the regional headquarters of a group based in Brussels-Capital and Walloon regions); and
  2. a work permit waiver for categories of individuals:
    • with special ties to Belgium or another EEA Member State or Switzerland or individuals authorised to work in Belgium (e.g., EEA or Swiss nationals, UK nationals employed in Belgium prior to 1 January 2021, accompanying family members, individuals employed by EU-based entities providing services in Belgium, refugees recognised in Belgium, researchers and students extending their stay for the purpose of job-searching or entrepreneurship);
    • staying only for a short time in Belgium (e.g., employees on business trips,17 or OECD nationals attending non-productive training in the Brussels-Capital and Walloon regions for a maximum of three calendar months); or
    • who are considered key individuals (e.g., executive employees employed by a Belgian company that qualifies as the regional headquarters of a group of companies in the Brussels-Capital and Walloon regions).18

The year in review

Pursuant to the Sixth State Reform, the regions of Flanders, Wallonia and Brussels have been responsible for corporate immigration matters as of 1 July 2014, with the exception of residence status, which remains a federal issue.21 There has been a widening departure from the previous corporate immigration policy, which was applicable (and experienced during many years) until 31 December 2018, and further developments are expected in the short term. Indeed, the regional authorities are tailoring certain aspects to meet their requirements22 with the understanding that important aspects of the statutory immigration framework and policies remain in the hands of the federal government or require cooperation between the various levels.

For instance, in that regard and with a view to implementing the Single Permit Directive, the various Belgian entities with jurisdiction over corporate immigration matters (i.e., the federal government, the regions and the German-speaking community) concluded on 2 February 2018 a cooperation agreement to coordinate the policies on work and residence permits for third-party nationals applying to work and stay in Belgium for more than 90 days. The agreement is complemented by federal and regional legislation, clarifying the applicable rules. Although primarily aimed at overhauling processing aspects (as opposed to other requirements), this is a major change for all stakeholders involved in corporate immigration in Belgium. Indeed, it allows the regions to reflect on their corporate immigration policies, resulting in certain material changes. In this regard, the regional corporate immigration policies are complementary rather than contrasting. In most cases, a work permit obtained legitimately in a given region allows its holder to work legitimately in the other regions. In other words, there are now more corporate immigration options for all stakeholders, which should increase Belgium’s attractiveness as a business hub in the EU.

Finally, owing to the increasing role of the European Union in corporate immigration matters, the regional authorities will have to take into consideration the legislation and case law of EU administrative, legislative and judicial bodies. That said, owing to greater regional flexibility, the new setup may allow for some interesting developments in the mid to long term. For the same reasons, these developments are expected to provide even more efficient legislative and policy tools to increase the attractiveness of the Belgian regions from a corporate immigration perspective.

In 2021, the most relevant developments from a corporate immigration perspective were the following.

During the ongoing covid-19 pandemic, the immigration authorities have been noticeably available for corporate immigration stakeholders. Although difficulties are unavoidable under these most challenging circumstances, the authorities have arguably tried their best to support individuals and businesses caught in intricate immigration situations deriving from the massive (and often immediate) and lengthy travel restrictions across all jurisdictions, countries and continents. For instance, whenever possible, the authorities have allowed the filing of applications via electronic means and have ensured effective communication by email correspondence regarding the processing of these applications. Experience built up in that regard has arguably helped the immigration authorities in implementing their mandatory online application processes in 2021.

Since 15 August 2021, third-country students who obtained a graduate, bachelor or master’s degree or doctorate at a Belgian university or college of higher education, as well as third-country students who obtained a diploma in another EU member state and who followed part of their studies in Belgium as part of a mobility programme (e.g., Erasmus Mundus), have the possibility to stay in Belgium, on the basis of a renewal of their residence permit for a period of 12 months to seek employment or set up a business.23 During that period, these individuals have unrestricted access to (self-)employment, it being understood that they have to adjust subsequently their status prior to the expiry of this 12-month period by applying for a work authorisation or a professional card. Moreover, as such possibilities are exceptions to the principle of prior work authorisation, they are closely monitored by the authorities to prevent misuses.

The transposition of the Intra-Corporate Transfer (ICT) Directive,24 which required the alignment of federal and regional legislation, was completed in 2021: the process of applications has been possible under the ICT format since 16 December 2021.

More generally, although Belgium is keen on remaining attractive to the typical corporate immigration stakeholder, the recent overhauling of some of its general immigration rules may have some impact on professionally active individuals and their accompanying dependents. In that regard, stakeholders must be aware of:

  1. the mandatory online application platform requiring preparatory steps by the (foreign) employer that may delay – materially in the worst-case scenario – the first filing of an application;
  2. the possibility of delays regarding the processing of work authorisations decided at the regional level: it is therefore recommended that the employers do not systematically rely on past processing times and consult in a timely fashion regarding the reasonable expectations under the circumstances at hand;
  3. the extension of the maximum processing time of family reunification registrations (i.e., nine months, theoretically extendable by two additional periods of three months), requiring timely assistance with a view to mitigating practical relocation misunderstandings or hindrances;
  4. certain restrictions regarding the possibility to adjust the immigration status of individuals already present in Belgium (e.g., a single permit application on behalf of an individual already present in Belgium is only possible when this individual has a valid student or short-term immigration status); and
  5. the recent development that years spent in Belgium as a seconded employee no longer count for the adjustment of an unlimited immigration status.

Outlook and conclusions

The Belgian statutory corporate immigration framework is still undergoing important structural modifications (see Section III). Therefore, certain difficulties or delays may still arise in the short term, particularly considering the fact that internal processes are being overhauled and adjusted. That being said, the regional authorities are using their best efforts to explain in detail the applicable framework to all stakeholders and identify areas for improvement, with a view to continuing to offer above-average corporate immigration options compared with other EU Member States.