A digital platform, “Working in Belgium,” intended to facilitate the filing and processing of applications, will be launched soon after a test phase. The Brexit Trade and Cooperation Agreement has an impact on UK business visitors: some activities are work permit-exempt. Finally, this article summarizes the main changes to the Flanders work/single permit legislation that took effect March 1, 2021.
New Digital Platform: Working in Belgium
Belgium will soon have a new digital/electronic platform to facilitate information gathering and exchange by and between the authorities involved in single-permit processing. These authorities include the three regions (Brussels, Flanders, and Wallonia), the federal immigration office, foreign consular posts, municipalities, and the national social security office.
The practical roll-out of the digital platform, “Working in Belgium,” is planned in three phases:
Phase 1: All single-permit applications (first applications and renewals) processed via the digital platform, “Working in Belgium,” where the applicant can consult his file. This includes a test phase, probably in April 2021, and will become operational after the test phase ends.
Phase 2: Integrated electronic exchange between the platform and the authorities concerned with planning: operational by the end of June 2021.
Phase 3: Extension of the scope of applications via “Working in Belgium” to work permits, professional cards, and single permits for indefinite duration. Anticipated timing: 2022.
Post-Brexit Exemptions for UK Business Visitors
The Trade and Cooperation Agreement between the European Union (EU) and the United Kingdom (UK) dated December 24, 2020, contains several clauses regarding immigration.
The articles SERVIN.4.2. and 4.3. of the Trade and Cooperation Agreement contain favorable provisions for intra-corporate transferees, business visitors for establishment purposes, and short-term business visitors.
All three regions that have jurisdiction over work/single permits (Brussels, Flanders, and Wallonia) confirm on their websites that SERVIN.4.2 and 4.3 of the Trade and Cooperation Agreement are being applied, or will be applied: short-term activities that are not yet covered by existing exemptions under regional legislation are exempt or will also be exempt.
Short-Term Business Visitors
Short-term business visitors cannot be engaged in selling their goods or supplying services to the general public, and they cannot, on their own behalf, receive remuneration from within Belgium. Furthermore, in principle, short-term business visitors cannot be engaged in the supply of a service in the framework of a contract concluded between a legal person that is not established in Belgium and a Belgian consumer. Short-term business visitors can stay in the Schengen area (not only Belgium) for a period of up to 90 days in any six-month period.
For Belgium, allowed activities for short-term business visitors may include meetings and consultations, research and design, market research, training seminars, trade fairs and exhibitions, sales, purchasing, after-sales or after-lease service, commercial transactions, tourism personnel attending conventions or accompanying certain tours, and translation/interpretation supplying services as employees.
New Work/Single Permit Legislation: Flanders
The Flanders work/single permit legislation has been updated recently. The changes took effect March 1, 2021. Below are selected highlights.
- Some exemptions were updated. The Van Der Elst exemption was updated to reflect European Court of Justice case law. Temporary agency workers can now also be eligible if all other requirements are met.
- The possibility to file single-permit applications in Belgium is limited to specific categories of foreigners. Foreigners who reside in Belgium on the basis of family reunification can no longer file a single permit application/change their status to employee in Belgium.
- A work permit can be issued for 90 days in any 180-day period instead of 90 consecutive days. This will allow more flexibility, and will also avoid having to apply for new permits for frequent short time periods.
- Assignments to Belgium require that the employer/user has its registered seat or an establishment unit in Flanders. This implies that having an assignee work at home in Flanders will become impossible, with one exception: when employment in Belgium is subject to Belgian social security, which implies that Belgian social security contributions will be paid by the foreign employer who is registered with the Belgian Legal Database for Enterprises.
- For assignments, the duration of the work authorization is limited to the duration of the final date of Certificates of Coverage, issued pursuant to social security treaties. This is not new; in practice, the Flanders authorities already used the Certificates of Coverage dates as reference dates. The new legislation confirms this administrative practice.
- A hire of a single-permit holder by a new employer is considered a single-permit extension application instead of a first, new single-permit application. The immediate consequence is a decrease of administrative burden because fewer documents must be submitted.
- The obligation to inform the Flanders authorities about changes has been updated. The employer must notify the authorities not only about the termination of the employment contract but also about any “significant change” in employment conditions. The Flanders authorities will inform the employer within 15 days if a new work authorization must be applied for.
- Frontier workers are now defined in the same manner as in the federal immigration legislation. A frontier worker is defined as an employee who works in Flanders territory, but who has main residence in a neighboring country and who returns to the country of residence in principle daily or at least once a week. The UK is still considered a neighboring country.
- Salary thresholds, which are updated on a yearly basis, must be complied with for permits valid for longer than one year. Permits for the highly skilled, executives, and intra-corporate transferees, for example, are subject to a salary threshold and can be valid for up to three years. If the salary threshold is updated in year 2, this salary threshold must automatically be met. This is not new; in practice, the Flanders authorities already applied this principle. The new legislation confirms this administrative practice.
- The motives for refusal or withdrawal of work authorization are now divided into two groups: mandatory and potential motives. For potential motives, the law provides that the authorities must take into account the specific circumstances of the file, the interests of the foreign employee, the economic interest of the employer, and the proportionality principle.
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