I 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. For the sake of clarity, it should be noted as transposition of the Single Permit and ICT Directives3 requires the alignment of federal and regional legislation, the transposition process has encountered substantial delays.

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 lawmakers (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), governing the immigration status of foreign directors and self-employed persons in Belgium, and the LIMOSA 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 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,4 distinguishes between:

  1. nationals from EEA5 Member States and Switzerland (EEA and Swiss 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.6

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.7 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 European Union.

Different levels of authorities are entrusted with monitoring compliance, from government agencies8 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,9 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 (1) to make local businesses more competitive (e.g., highly qualified individuals,10 executives,11 and specialised technicians supporting imported infrastructure and equipment)12 or (2) to enhance international visibility and the development of local businesses (e.g., individuals completing internships,13 attending special training in the framework of export-oriented sales contracts,14 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 (1) 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, accompanying family members, individuals employed by EU-based entities providing services in Belgium, refugees recognised in Belgium) or (2) staying only for a short time in Belgium (e.g., employees on business trips,15 or OECD nationals attending for non-productive training in Brussels-Capital and Walloon Regions for a maximum of three calendar months) or (3) who are considered key individuals (e.g., executive employees employed by a Belgian company that qualifies as regional headquarters of a group of companies in Brussels-Capital and Walloon Regions).16

II INTERNATIONAL TREATY OBLIGATIONS

As an EEA Member State, Belgium does not require EEA or Swiss nationals to hold a work permit to work in Belgium.

In addition, third-country nationals17 (including non-EEA and non-Swiss nationals) who are long-term residents of another EU Member State benefit from a fast-track work permit process when applying for positions affected by labour shortages.

Belgium also applies favourable rules to the nationals of OECD Member States18 attending training in Belgium (see Section I.iii).

Although progressively less relevant in a corporate immigration context, bilateral treaties on international employment entered into with Algeria, Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro, Morocco, Serbia, Tunisia and Turkey still play a role when fast-track processing is not applicable.

Bilateral social security agreements contribute to the attractiveness of Belgium as a regional hub in the European Union. Indeed, Belgium has a good network of such treaties, allowing treaty-partner nationals employed in Belgium not to lose benefits in their home country while qualifying for freedom to provide services in the European Union under certain circumstances.

III THE YEAR IN REVIEW

Pursuant to the Sixth State Reform, the regions Flanders, Wallonia and Brussels are responsible for corporate immigration matters as of 1 July 2014, with the exception of residence status, which remains a federal issue.19 Although the legal and practical implications of the reform are still being worked out,20 pending transposition of the ICT Directive, there has been some departure from the previous corporate immigration policy, which was applicable until 31 December 2018, and further developments are expected in the short term. Indeed, the regional authorities are tailoring certain aspects to meet their requirements,21 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. 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 2018, the most relevant developments from a corporate immigration perspective were the following.

On 2 February 2018, 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 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 others. 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.

Belgium adopted the Brexit Act on 3 April 2019 relating to the EU Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. Regarding the immigration status of British nationals, the Act provides, in principle, for a transition period until 31 December 2020 in the event of a no-deal scenario, with the understanding that this period may be shorted. Clarification is expected by 31 October 2019.

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

IV EMPLOYER SPONSORSHIP

Activities such as receiving or providing training in Belgium; attending (preparatory or otherwise) meetings in Belgium; collecting information and data in Belgium with a view to briefing or training an offshore team, etc., qualify as working in Belgium.

In this context, from a practical perspective, the first question that typically arises is to what extent the foreign national can be considered a visitor on a business trip in Belgium (i.e., not deemed to work in Belgium within the meaning of the applicable rules or, in the affirmative, benefiting from a temporary work permit waiver).

In this regard, caution must be exercised owing to the restrictive interpretation of the notion of business trip, bearing in mind that the mere issuance of a type C Schengen visa (commonly referred to as a business visa) by the Belgian or other EU Member State authorities is not sufficient. Indeed, such a visa only allows its holder to travel to the port of entry of the country in question and request entry; it does not allow entry, residence or the conduct of business per se. For these reasons, experience indicates that visitors to Belgium, after having obtained a business visa, are sometimes under the erroneous impression22 that their visit will, under any circumstances, always qualify as a business trip.

i Work permits

In light of the foregoing, best practices require that the employer assess whether a visit qualifies for a temporary work permit waiver.

If so, it is important to bear in mind that, since 1 January 2019, most of these waivers require official confirmation by the (corporate immigration) authorities. Moreover, certain waivers do require the fulfilment of specific formalities and prior notification.23

If not, the employer must further assess whether it could benefit from fast-track processing. In most corporate immigration matters, the employer will indeed benefit from such processing, aimed at easing the application requirements and facilitating the process, which will reduce the duration of the processing of the work authorisation aspects of the application to a few weeks (bearing in mind that the processing of the entry or residence aspects of the application cannot start before a decision on the work authorisation aspects).

If fast-track processing is not available, which is exceptional in typical corporate immigration matters, the question will arise as to whether employment in Belgium is a realistic option. Experience indicates that, when duly advised, the employer will realise that under these circumstances employing the individual in Belgium is not realistic within a reasonable time frame, if at all possible.

There are four different types of work permits in Belgium, all of which require an application to be filed with the competent regional authorities:24

  1. the single permit for an unlimited duration, for different jobs or employers, to be applied for by the employee;25
  2. type B work permit, valid for a renewable period of less than 90 days for specific employment with a specific employer, to be applied for by the employer;
  3. the single permit for a limited duration, valid for a renewable period of more than 90 days for specific employment with a specific employer, to be applied by the employer; and
  4. the EU Blue Card, valid for an initial term of 13 months, initially renewable for 13 months and subsequently for three years, valid for specific employment with a specific employer during the first two years, to be applied for jointly by both parties.26

In corporate immigration matters, almost all applications are for a type B work permit, a single permit for limited duration or a waiver from those permits.27

In practice, this means that the employer (or a third party acting on its behalf) must prepare the application file, which is then submitted to the competent regional authorities. The supporting documents typically28 include:

  1. a medical certificate, using a standard form;
  2. an employment contract and, when applicable, an assignment letter;
  3. a full copy of the employee's passport;
  4. a curriculum vitae and copies of diplomas;
  5. confirmation of social security status, including, for posted workers and when applicable, a certificate of coverage from the social security authorities of the home country;
  6. if applicable, a copy of the services agreement in the framework of which the employee is posted to Belgium;
  7. for an employee already residing in Belgium: the pay slips for the previous employment, the employee's 'individual account' (i.e., overview of payslips issued by the payroll agency);
  8. for a single permit application: proof of payment of the processing fee (currently set at €350 for employees), a no-criminal record confirmation covering the past 12 months (to be obtained from all countries of previous residence), a medical certificate and proof of health insurance; and
  9. in the event of a waiver: the list of documents and data depends on the type of waiver and must be assessed accordingly.

An application for a single permit for a limited duration (i.e., the most common type of permit in corporate immigration matters) is processed as follows.

The competent regional authorities check if the file contains all required supporting documents and information. If not, the employer will receive a notification to update the file within 15 days. If the file is not updated within 15 days, it will be considered inadmissible.29

The regional authorities take a decision on the work authorisation aspects, followed by a decision on the entry or residence aspects by the Immigration Office. These two decisions must be taken within four months from formal notification of the admissibility of the application.30 During processing, requests for additional documents and information are possible and must be answered within 15 days. In the absence of a decision within this four-month period, possibly extended, the application will be deemed accepted and the employee is authorised to work and enter or reside in Belgium.

In the event of a negative decision, the employer can appeal within a 30-day period. As the processing of the appeal may take several months, it is recommended to assess the accuracy and adequacy of the application before filing.

The main practical difference between an application for a type B work permit and a single permit for a limited duration is that the single permit application covers both the work authorisation aspects and residence aspects (see Section IV.iii).

ii Labour market regulation

The most obvious form of labour market regulation applicable to employees subject to a work permit requirement is the need to have an international employment treaty31 with the employee's country of nationality, combined with a labour market test.32 At first glance, these requirements appear quite stringent and restrictive. Fortunately for corporate immigration stakeholders, both requirements have, over the years, become the exception rather than the rule in corporate immigration matters.33

Even in the absence of these requirements (i.e., in most corporate immigration matters), the Belgian authorities ensure protection of the Belgian labour market by requesting:

  1. a local employment contract, subject to Belgian law; or
  2. when the employee is posted temporarily in the framework of an employment contract that is not subject to Belgian law, with regard to activities carried out in Belgium, compliance with the remuneration and employment conditions set out in Belgian statutory provisions, decrees or collective bargaining agreements carrying criminal sanctions for non-compliance.34 In this respect, many Belgian employment provisions, decrees and collective bargaining agreements provide for such sanctions.35

In addition to these provisions, mandatory Belgian rules of public policy36 apply when the posted employee performs activities for a sufficiently long period in Belgium. The courts have discretion to define this concept (generally from six to 12 months). However, a risk exists even for a short posting to Belgium (i.e., six months or fewer).

Moreover, when a minimum gross remuneration level is required by applicable Belgian law, allowances paid to reimburse expenses incurred during an assignment, such as travel and accommodation, are not considered remuneration.

Proper compliance with the foregoing is duly monitored:

  1. at the time of the application for the work permit, by requesting a copy of the contractual documents governing the terms and conditions of employment in Belgium, including the social security aspects;
  2. during employment in Belgium, by regular audits. In this regard, Belgium is no different from other EU Member States; and
  3. upon renewal of the work permit, by verifying if the documents submitted at the time of the application have been implemented correctly and in accordance with their terms and conditions.

As of 1 April 2007, the Belgian authorities also rely on information collected via the mandatory online registration system (the LIMOSA system); the registration process is explained – in English – on the official website, www.limosa.be. In the absence of prior registration, which must be proven by means of an attestation, the employer is required by law to notify the presence of the visiting employees to the authorities.

Finally, it is important to bear in mind that undocumented or unlawful employment of a foreign national is considered a serious offence under Belgian law, with hefty sanctions for the employer and, potentially, any other party involved (such as the members of the employer's and its client's management).37 Legal risks also exist for the employee. In other words, both the employer and the employee have a common interest in avoiding non-compliance.

In this context, monitoring is a reality and compliance with the applicable rules and regulations in the fields of employment, social security and tax law must be – and remain – a priority for the employer. Acting otherwise will automatically result in a refusal to grant the work permit, either at the time of the initial application or upon renewal, it being understood that the employer will also be exposed to financial and criminal sanctions.

iii Rights and duties of sponsored employees

For the single permit for a limited duration (including the application for a waiver), no subsequent visa application (if the applicant resides abroad) or municipal registration application (if the applicant resides in Belgium) must be filed in the event of a positive decision on the permit application: the Belgian consular or municipal authorities are instructed directly by the Immigration Office and will invite the applicant to collect the visa or residence permit, as the case may be.

For a B work permit (including the application for a waiver), once the work permit has been obtained or the waiver confirmed, the employee can apply for a visa with the consulate (if residing abroad) or adjust his or her immigration status with the municipality (if residing in Belgium). In practice, this means that an employee who does not hold a Belgian residence permit must obtain a type D visa from the Belgian consulate with jurisdiction over his or her place of residence abroad. Employees who already hold a Belgian residence permit or who benefit from a visa waiver, and are thus allowed to enter and stay for a material portion of the permissible 90-day per six-month period in the Schengen Area,38 may apply at the municipality of their place of residence in Belgium (direct registration). The documents to be submitted are the same under the two routes and typically include the original work permit, police certificates from the country or countries of residence during the past 12 months and a medical certificate.

Additional documents, such as internationally legalised and translated birth, marriage or divorce certificates, are required for the visa application on behalf of accompanying dependants. While the visa application on behalf of the employee is generally processed within two weeks, recent experience shows that the application on behalf of accompanying dependants may take longer.39 Direct registration always takes longer: processing times in excess of three months (for the employee) and six months (for the accompanying dependants) are not uncommon. In this regard, the authorities expect that the applicants regularly update the content of their application file, particularly regarding the financial aspects thereof (e.g., official tax assessment received while the processing of application is still ongoing), to ensure that the authorities possess the most recent data. Failure to update adequately may result in negative decision on the application.

Since March 2015, certain categories of foreign nationals must pay a fee to cover administrative expenses when filing certain types of applications to enter or stay in Belgium.40 More specifically, this pertains to foreign nationals applying for a stay of more than three months in Belgium (it being understood that certain exceptions apply to EU nationals and applicants for international protection, such as refugees, beneficiaries of subsidiary protection, unaccompanied foreign minors and victims of trafficking). The fee is due when applying for a single permit application and type D visa. In the event of direct registration, the fee will be due when registering with the local municipality. The fee is in addition to existing consular or municipal fees; an exemption from consular or municipal fees does not apply to this processing fee. Hence, if the visa application or registration is ultimately rejected, the fee will not be reimbursed.

Once the type D visa has been obtained, the employee and accompanying dependants must register with the municipality of their place of residence in Belgium, with a view to obtaining their Belgian residence permit, valid for the duration of the work permit plus one month. This final step will take four to 12 weeks (or longer in exceptional cases), depending on the place of residence. The residence permit replaces the visa, which is generally valid for three to six months. Finally, one should bear in mind that the Act of 18 December 2016 introduced provisions aimed at fostering the 'integration' of foreign nationals authorised to reside in Belgium for a limited period of time or entitled to an unlimited residence right, such as non-EEA nationals professionally active in Belgium as employees or self-employed persons, as well as their accompanying dependants.41

The employer must file a renewal application for the single permit at least two months before the expiry of the work authorisation. After five years, the employee may apply for a Belgian residence permit of unlimited duration, allowing his or her employer to benefit from a work permit waiver.

In the unlikely event of deportation proceedings, Belgium's highest administrative court, the Council of State, extended to Belgian deportation proceedings the 'right to be heard' (i.e., due process), recently recognised by the Court of Justice of the European Union in its ruling of 11 December 2014 pertaining to the application of Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals.42 This means that an individual subject to deportation proceedings must have the opportunity, before a decision is rendered, to express his or her point of view on the legality of his or her stay. To this end, a formal communication channel must be organised by the immigration authorities (as opposed to an informal communication channel with the municipal authorities or police). This shows that EU rulings can be quite rapidly taken into account by the Belgian immigration system.

V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS

Belgium does not have a favoured immigration status for investors. The authorities are nevertheless aware of the importance of attracting investors as, at present, investors are expected to carry out professional activities in Belgium, either directly (e.g., as self-employed consultants or service providers) or by playing an active role in a corporate vehicle (e.g., as a director of a Belgian company). In other words, a mere financial investment is currently insufficient. Although no modifications to this approach are expected in the short term, there is nonetheless a growing awareness that changes to this policy could help the regions attract foreign investors. Changes can therefore realistically be expected in the near future, particularly considering the new regional powers in this area.

A professional card must always be obtained prior to the start of professional activities. This requirement aims to balance the interests of foreign nationals who wish to work as self-employed professionals in Belgium against the regions' socio-economic interests.

As is the case with foreign employees, certain temporary waivers of the professional card requirement are available to self-employed individuals. The most relevant is the temporary waiver for 'business trips'. Business trips are visits to Belgium by a self-employed foreign national, who does not have his or her place of residence in Belgium. Business trips will typically involve visiting professional partners, negotiating and entering into contracts, attending trade fairs and exhibitions, or attending board or shareholder meetings, provided the trips do not last longer than three consecutive months. If the scope or duration of the visits exceeds this period, a professional card will be required. Other waivers are available related to the residence status of the individual and are similar to those available for employees.

The application for a professional card is typically filed with the Belgian consulate having jurisdiction over the place of residence of the self-employed individual. In exceptional cases, when the applicant is already entitled to reside in Belgium, the application may be filed in Belgium through a business desk.

The required documents will depend on the type of activity envisaged. In any case, a certificate of managerial skills must be obtained on the basis of existing degrees or experience or after having attended specific classes and passed an exam. Other documents include a comprehensive business plan, fully budgeted and realistically financed, as well as a copy of the letter of intent and (draft) contracts concluded with, or comfort letters from, local partners. There is no specific investment amount required, as the proposed business venture must be viable in the coming years, which requires objectively sufficient financial means in the form of available cash or credit lines from reputable banks. Finally, the application package will include the supporting documentation for the type D visa, which is applied for simultaneously (unless the applicant already holds a residence card).

The processing time is approximately four to 12 weeks, possibly longer if additional documents are requested or questions raised (which is not uncommon since the authorities verify whether access requirements for the intended professional activities are met and all other obligations fulfilled). That said, the authorities are efficient in their processing of applications with added value for the local economy.

In the event of a positive decision, a two-year card is generally issued, usually renewable for a longer period (up to five years) upon filing a detailed renewal application with supporting documents evidencing, among others, proper compliance with social security and tax laws.

In the event of a negative decision, an appeal may be lodged within 30 days of receipt of the decision. The appeal may take several months. If the negative decision is confirmed, no new application is possible within two years of the initial application, unless the application pertains to other activities or includes new facts, or if the initial application was formally rejected without reviewing the facts.

VI OUTLOOK AND CONCLUSIONS

The Belgian statutory corporate immigration framework is currently undergoing important structural modifications (see Section III). Therefore, certain difficulties may still arise in the short term, particularly considering the fact that internal processes are being overhauled and adjusted. This could temporarily result in longer processing times than before 1 January 2019. 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.


Footnotes

1Henry Hachez is a partner at Tilia Law. The author would like to thank Liesbet Van Dael, a counsel with the firm, for her research and assistance preparing this chapter. The information in this chapter was accurate as at April 2019.

2See, for instance, the website of the US International Trade Administration (www.export.gov/article?series=a0pt0000000PAtIAAW&type=Country_Commercial__kav), which describes the country's key economic features as follows: 'Belgium is a compact and diverse market, sitting on the cultural and linguistic border of Germanic and Latin Europe. It is composed of the francophone Wallonia region to the south, the Dutch-speaking Flanders region in the north, and the bilingual capital region of Brussels. There is also a small enclave of German speakers. This diversity makes it an ideal market for many US firms to test their products before expanding distribution throughout Europe. With a population of 11.35 million people in a territory comparable in size to the state of Maryland, it is densely populated. It enjoys one of the highest per capita incomes in Europe, with a relatively balanced income distribution, resulting in widely distributed purchasing power.'

3Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State and Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer.

5See for the EEA Member States, https://www.efta.int/eea.

6As in other Schengen Area Member States, short stays by foreign nationals are governed by the Schengen Borders Code and Visa Code while long stays are subject to the Belgian long-term visa (D visa); the foreigner must register with the local municipality of his or her place of residence in Belgium within three or eight days, respectively. Exceptions to this requirement apply to short stays in a hotel. The rules applicable to EEA and Swiss nationals are less stringent owing to their right of free movement within the EEA, it being understood that Belgium interprets this right strictly and will not hesitate to ask EEA and Swiss nationals to leave Belgium if they lack sufficient financial means to support themselves and cover their health insurance.

8For instance: a federal centre for the analysis of migration, the protection of foreigners' fundamental rights and the fight against human trafficking (established in March 2014 – see www.myria.be/en/about-myria); various departments and units within the Immigration Office that are responsible for monitoring proper compliance with immigrations laws and regulations; a federal department in charge of compliance with labour law, remuneration requirements and other employment conditions; a federal department in charge of compliance with the legislation on health and safety at work, ergonomics, hygiene at work and the psychosocial aspects of work; inspection services organised around the Social Security Administration and related agencies; and inspection services at the regional and community levels (Flemish Region, Brussels-Capital Region and Walloon Region) that mainly have jurisdiction over work permits, temp agencies and private job placement agencies.

9Such as members of the business community that employ a sizeable number of non-EEA nationals to maintain and develop their activities in Belgium.

10Individuals earning an annual remuneration of at least €41,739 gross (Brussels-Capital, Walloon Regions and German-speaking community) or €41,868 (Flemish Region) in 2019 and holding a college-level degree.

11Individuals earning an annual remuneration of at least €69,637 gross (Brussels-Capital, Walloon Regions and German-speaking community) or €66,989 (Flemish Region) in 2019 entrusted with a management position and having relevant professional credentials.

12Specialised technicians posted to Belgium for a maximum duration of six months by a foreign employer and coming to Belgium to install, launch or repair equipment made or delivered by their employer.

13Contrary to the general perception, most internships in Belgium are subject to employment and immigration law requirements.

14Employees posted by a foreign employer and coming to Belgium for a maximum duration of six months to be specifically trained in the framework of a sales contract entered into between the Belgian firm and their employer.

15This exemption is valid for 60 calendar days per calendar year with a maximum of 20 consecutive calendar days per qualifying meeting.

16These executive employees must earn at least €69.697 gross (2019) and be employed under a local Belgian employment contract by a Belgian company.

17Non-EU nationals, in practice, including non-EEA and non-Swiss nationals.

18See www.oecd.org/about/membersandpartners/ for information on the OECD Member States.

19Special Act of 6 January 2014 pertaining to the Sixth State Form.

20As at April 2019.

21The Flemish Region's corporate immigration policy providing for the possibility to obtain a three-year work permit for highly qualified individuals and executives, a lower salary threshold for highly qualified individuals below 30 years of age (i.e., €33,494.5 in 2019), hired by a Belgian employee, and additional possibilities for the employment of foreigners by local entities based in the Flemish Region in positions affected by a labour shortage (https://www.werk.be/online-diensten/vanaf-2019-werknemers-buitenlandse-nationaliteit/f-algemene-informatie/f2-wetgeving).

22Such an impression is often reinforced by the official mentions printed on the visa that pertain to the reasons for entry, the number of permitted entries and the period of validity.

23For example, the regional headquarters located in the Brussels-Capital or Walloon Regions must inform the regional authorities prior to employing the executive employees qualifying for the work permit waiver.

24For single permits for unlimited duration, jurisdiction derives from the employee's place of residence. For type B work permits, single permit for limited duration and the EU Blue Card, jurisdiction derives from the employee's intended place of employment in Belgium.

25The application requirements differ slightly between the Flemish region, on one hand, and the Brussels and Walloon regions, on the other hand. In the Flemish region, the employee must demonstrate at least four years of employment during the five years immediately preceding the application. In the Brussels and Walloon regions, the employee must have worked for four years during an immediately preceding uninterrupted stay of at least 10 years in Belgium, on the basis of a type B work permit. The four-year period may be reduced to three years (i.e., if a treaty applies) or two years (i.e., legal residence in Belgium of the employee's accompanying dependants).

26This type of work authorisation requires a joint application by the employer (which must apply for a temporary work permit in Belgium with the regional authorities of the place of employment) and the employee (who must apply, at the same time, for the actual Blue Card with the consular or municipal authorities).

27Applications for a single permit for an unlimited duration are becoming less relevant, owing to the full waivers generally available to the target group of applicants. The Blue Card is apparently not the preferred option for highly skilled employees. One reason appears to be that the salary threshold is higher (€53,971 gross, in 2019) than for a type B work permit or a single permit for a highly skilled worker (€41,739 gross for the Brussels and Walloon regions or €41,868 for the Flemish region, in 2019), with no obvious benefits for the parties in the short term (i.e., the next two years). This trend is an illustration of the objective need for ongoing overhaul – at the EU level – of the Blue Card programme.

28Other documents may be required, as well as a sworn translation into Dutch, French or German, when the documents are not in an official language of Belgium. Documents in English are generally accepted without translation, it being understood that such a translation may always be requested.

29The regional authorities have discretion to allow certain documents, such as the certificate of coverage or the no criminal record confirmation, to be filled later in the process, but it is recommended to err on the side of caution in such matters.

30This period can be extended formally in exceptional circumstances. Such extension is formally notified by the authorities.

31See Section II.

32The labour market test requires the employer to demonstrate that it is not possible to find, on the EEA labour market, an employee able to satisfactorily perform the activities in question, even after training.

33Most categories of employees encountered in the corporate immigration context are exempt from these requirements. Exceptions exist, such as for the EU Blue Card, which can be denied for labour market considerations, both in the home country or in Belgium.

34The Act of 5 March 2002 implementing Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services and establishing a simplified scheme for maintaining the social documents for undertakings that post workers to Belgium, as modified by the Omnibus Act of 11 December 2016 pertaining to the posting of workers (notably transposing the Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No. 1024/2012 on administrative cooperation through the Internal Market Information System (the IMI Regulation).

35For instance, the following provisions apply: the Act of 16 March 1971 on working time (i.e., 38 hours per week in most cases, it being understood that lower limits may apply); the Act of 28 June 1971 on annual paid vacation; the Act of 24 July 1987 on the placement of employees at the disposal of third-party users;

the Act of 4 August 1996 on the health and safety of employees; the Act of 8 April 1965 on work rules; Royal Decree No. 5 on the keeping of payroll documentation; the Act of 12 April 1965 on wage protection; all provisions implementing the above acts; and all enforceable collective bargaining agreements (minimum wage scales are usually laid down in collective bargaining agreements).

36An exhaustive list of these laws and statutory provisions is difficult to make. In the absence of an express initiative by the legislature, the case law is important in this regard. A rule that has not been considered a matter of public policy in the past could nevertheless be recharacterised as such in the event of future litigation. Such characterisation is generally attributed to statutory provisions that protect workers, such as termination entitlements and non-compete clause requirements.

37The sanctions include a prison term of six months to three years or a fine of €4,800 to €48,000 per employee (capped at €4.8 million), possibly combined with a ban on doing business in Belgium for one month to three years (including a possible order to close the business for the same period). When criminal prosecution is waived (at the discretion of the prosecuting authorities), the administrative fine (ranging from €2,400 to €24,000 per employee, capped at €2.4 million) remains high, considering that it can also be combined with a temporary ban on doing business and closure of the business in Belgium.

38Experience indicates that this option is not recommended for employees requested to travel extensively in the weeks or months after their arrival in Belgium. Indeed, local processing may take several months and entail travel restrictions within or outside the Schengen Area. Caution must therefore be exercised when considering this option.

39In corporate immigration matters, the authorities process the visa applications on behalf of accompanying family members on a priority basis. That being said, the processing of these applications can take several months under the current circumstances.

40The fee is intended to cover the costs of processing the application by the Immigration Office The level of the fee will depend on the grounds on which the visa application is based. The most relevant categories in corporate immigration matters are as follows: employment in Belgium (for visa applications based on a work permit or professional card, the fee is €358); family reunification (for visa applications based on family reunification, the fee is €204); and children under 18 years old: (minor applicants are exempt from the fee).

41These provisions have been applicable since 26 January 2017, but arguably require clarification owing to the broad level of discretion given to the authorities. In a nutshell, residents must demonstrate their 'integration' prior to expiry of their residence permit (i.e., generally issued for a maximum period of one year). This may be done in different ways (i.e., there are some non-exhaustive guidelines in this regard), such as referring to duly authorised professional activities in Belgium (for holders of a work permit or professional card), showing proficiency in the official language of their place of residence in Belgium, showing material participation in social activities in Belgium (it being understood that this notion is not defined and could arguably be construed quite broadly with a view to including activities such as participation in neighbourhood or school activities or other philanthropic activities, membership in sports, social or hobby clubs), or receiving officially recognised training or education in Belgium. In the absence of such a demonstration, the Immigration Office can terminate the residence by not renewing the residence permit or cancelling it. That said, although not specifically defined – and possibly allowing for a non-negligible level of discretion by the Immigration Office – the 'integration standards' are arguably of a best efforts nature, to be assessed in light of the individual situation (including the typical temporary nature of the stay in Belgium in a corporate immigration context). The Act of 18 December 2016 also provides for an 'initial statement' by such foreign nationals, whereby they confirm their proper understanding of and compliance with 'the fundamental norms and values' of their place of residence in Belgium. The specifics of the initial statement must be implemented further. Finally, the new provisions enacted at federal level and having a material impact on the residence permit should not be confused with similar provisions existing at regional level, from which most individuals residing in Belgium in the corporate immigration context are exempt.

42C-249/13. See also ruling of the Council of State of 19 February 2015 (No. 230.257).