Bernard Caris of Praetica examines Belgium's corporate immigration system and looks at potential future changes:
"Belgium’s general immigration policy is quite liberal and of course heavily influenced by EU legislation on immigration matters. Specifically with regard to corporate immigration, it is also worth mentioning that Belgium has entered into several bilateral treaties regarding international employment and social security."
General introduction: business-friendly work permit system
Belgium, one of the founding member states of the European Union (EU), has a long immigration history and tradition. Belgium’s general immigration policy is quite liberal and of course heavily influenced by the EU legislation on immigration matters. Specifically with regard to corporate immigration, it is also worth mentioning that Belgium has entered into several bilateral treaties regarding international employment (eg, Turkey) and social security (eg, Australia, Canada, India, Japan, Republic of Korea, Turkey and the United States).
The Belgian corporate immigration system is a very business-friendly model in practice: the required permits (work permits for employees, professional cards for self-employed) are processed rather efficiently.
The work permit system is quite straightforward
Several foreigners are exempt from the need to obtain a work permit. This may be on the basis of nationality (ie, all European Economic Area (EEA) nationals, except Croatians), residence or the nature of the planned activities (ie, most business meetings, up to 20 consecutive calendar days per meeting and 60 days per calendar year).
The three regions – Brussels, Flanders and Wallonia – process work permits pursuant to Belgian federal legislation. In practice the German-speaking community can also issue work permits for its territory, part of the Walloon region which has delegated the power to issue such permits.
There are three types of work permits
A work permit A is specific to the employee and as such is valid for more than one employment or employer, for an unlimited period. This permit can be obtained by certain foreign employees who, in the 10 years before their application for a work permit A, have worked in Belgium for four years (although either two or three years may suffice, depending on the exact circumstances) with a work permit B, during a legal and uninterrupted stay. In 2011 (the most recent Belgium-wide data available), 262 work permits A were issued in Belgium (123 in Flanders, 87 in Brussels, 49 in Wallonia and three for the German-speaking community). In 2013 Flanders issued 315 work permits A.
A work permit B is linked to one specific employment or employer for a (renewable) period of one year. The employer must first apply for an employment authorisation; once this is granted, the employee receives a work permit B. In 2011, 32,276 work permits B were issued in Belgium (22,448 in Flanders, 6,902 in Brussels, 2,874 in Wallonia and 52 for the German-speaking community). In 2013 Flanders issued 24,944 work permits B.
A work permit C is specific to the employee and as such is valid for more than one employment or employer, for a (renewable) period of one year. It is mainly intended for foreigners who are entitled to a work permit on the basis of their residence in Belgium (eg, asylum seekers, students and family members of certain foreigners given authorisation to stay in Belgium). In 2011, 26,100 work permits C were issued in Belgium (12,027 in Flanders, 5,987 in Brussels, 7,803 in Wallonia and 283 for the German-speaking territory). In 2013 Flanders issued 11,208 work permits C.
The Blue Card – legally speaking, a residence permit – has not been particularly successful in Belgium. Since the implementation of the legal framework for the Blue Card, with effect from 10 September 2012, very few have been issued (only nine in Flanders during 2013).
For the purposes of corporate immigration (international transfer of staff), the work permit B is most commonly used. “Fast-track” work permits – ie, those without an EEA resident labour test – can be obtained relatively quickly: in general, within two to four weeks of the application being filed. These fast-track work permits are available to, for example, highly skilled and executive-level personnel earning an annual gross salary exceeding a set threshold (this is revised every year). To qualify as highly skilled, the employee must have at least a bachelor’s degree. In 2013, Flanders issued 3,150 work permits B for highly skilled employees (1,370 locally employed and 1,780 assignees), and 876 for executive-level personnel (216 locally employed and 660 assignees).
Most family members of work permit holders, and of certain work permit-exempt employees, can also obtain a fast-track work permit B. In 2013, Flanders issued 1,232 work permits B for such family members.
The work permit B allows the foreign employee to reside in Belgium for the duration of the permit. He or she must apply to the Belgian embassy/consulate in their country for a long-term visa D; once this is granted the employee can, upon arrival in Belgium, register and obtain a residence permit A, valid for the duration of the work permit B plus one month.
For nationals of visa-waiver countries who have spent less than 90 days in any 180-day period, in the Schengen Area, it may be possible to enter Belgium without having already obtained a visa D. These individuals may apply for a residence permit once they are in Belgium.
Problems in practice: processing time for residence permits
Unfortunately, it can take a long time to obtain residence permits, which is obviously problematic.
A first residence permit can only be issued after registration with the municipal authorities of the town in which the employee and his/her family members reside. The entire process involves several steps, and these can be very time-consuming.
One important step in the registration process is an address check by the local police, who will report back to the municipal authorities. In practice, this may take several weeks – or even, in large cities such as Brussels, more than one month.
Upon receipt of the police report, the employee will in most cases be invited to submit all the relevant documents. Again, the waiting time for an appointment may be several weeks or even, in some cities, a few months.
The residence permit is an electronic permit (Belgium will be using biometric permits in the future) produced by an external company. This means an order must be placed by the municipal authorities. The processing time for this may take two working days (very urgent), three working days (urgent) or two to three weeks (standard).
While the foreign employee’s residence permit is being processed, his or her residence in Belgium can be temporarily covered by an Annexe 15 document, which is valid for up to 45 days.
Similar problems, albeit to a lesser extent, can arise with the renewal of residence permits issued on the basis of a new work permit B. Applications for renewal must be submitted to the municipal authorities between 45 and 30 days before expiration of the existing residence permit. The municipal authorities will then forward the application to the Foreigners’ Office for approval. In practice, however, 45 days will often not suffice: during this period the Foreigners’ Office must approve the renewal and inform the municipal authorities, who must in turn inform the applicant, and then the electronic residence permit must be produced. While the employee is waiting for this process to be completed, the Annexe 15 document can be issued.
The long processing time can be problematic, and immigration compliance may become an issue. Travelling can also be difficult: because the Annexe 15 does not entitle its holder to re-enter the country, the foreigner awaiting a permit may have difficulties returning to Belgium after visiting another country.
In practice, it is recommended that foreigners (including nationals from visa-waiver countries) always apply for a long-term visa D. This not only enables holders to reside in Belgium but also allows travel for up to 90 days in any 180-day period, throughout the Schengen Area.
Regarding renewals specifically, secretary of state for asylum and migration Maggie De Block announced in her general policy statement, laid down in Parliament on 7 November 2013, a simplified process for renewal of residence permits A. Under the new system, the applicant will be invited to submit the documents required for renewal directly to the Foreigners’ Office at least three months before his or her residence permit expires.
Other issues surrounding the residence permit system may be solved in the near future: Belgium must implement the EU Single Permit Directive 2011/98, which requires a single application procedure for issuing a combined work and residence permit.
Major reform: transfer of legislative power from federal to regional level
The implementation of the Single Permit Directive in Belgium will not be easy, however, owing to huge reform at an institutional level.
At present, Belgian federal laws control immigration matters such as residence permits, work permits for employees, and professional cards for the self-employed. The authority to issue work permits, meanwhile, is regional. This will soon change: a Special Act of 6 January 2014, effective from 1 July 2014, transfers most of the power to legislate corporate immigration to a regional level. The changes involved include the following:
The regions can establish rules applying to, for example, highly skilled and executive-level personnel (work permit B), and self-employed business people (professional cards). The regions can also decide when a work permit of indefinite duration (work permit A) can be obtained. Finally the regions can also determine the activity-based exemptions from work permits and professional cards.
The legislative power to determine which foreign residents who have come to Belgium for reasons other than work may be eligible for a work permit (work permit C) or a work permit-exemption will remain federal.
Rules regarding exemptions for professional cards issued on the basis of the specific residence situation of a self-employed individual (eg, a refugee) will also remain federal.
The Special Act will, of course, have a huge impact. In general, one of the major questions will be whether the regions will create radically different sets of rules or, alternatively, limit the differences between the work permit regulations for their respective territories.
More specifically, the implementation of the Single Permit Directive creates a challenge: at which level will a single permit, combining the right to work (governed by regional laws) and to reside (governed by federal laws) be issued? Federal and regional authorities are currently negotiating towards a common view. It is uncertain as to when a decision can be expected, but – with European, federal and regional elections being held on 25 May 2014 – it is very likely that it will be the new governments, and the new parliaments, that decide.