As a result of the 6th state reform in 2014, the legislative competence as regards the employment of foreigners has been transferred to the regional level. The regions have been empowered to develop their own policies on the employment of foreign workers in function of the specific needs of their labour market. Flanders is first amongst the three regions to introduce new policies in this area. Brussels might follow the example in the next legislature while the Walloon region seems not to prioritize this policy area. Fragomen met with the cabinet of Philippe Muyters, Flemish Minister of Work, Economy, Innovation and Sports, this October and reports back on this topic.
The EU ICT single permit paves the way for an unprecedented EU-wide permit for third-country nationals, giving them the right to work in multiple EU member states.
The introduction of new policies in Flanders was intended to be linked to the implementation of the single permit, a combined work and residence permit issued through a single application procedure. This implementation was also a prerequisite for the implementation of other European Directives introducing new single permits for specific categories of foreigners: the intra-corporate transferees, trainees, students and researchers.
New policies in Flanders simplify the applicable legislative framework and facilitate access to the Flemish labour market for specific categories of foreign workers. These policies, next to aforementioned European permits, create a stimulating economic environment that allows companies to seek talent outside of Belgium when their needs cannot be fulfilled locally.
This article aims to highlight the upcoming policy developments in Flanders while clarifying procedural and practical implications of the introduction of the single application procedure and permit.
Single Permit – implementation in Belgium
The single permit is the result of the implementation of an European Directive which introduced a single application procedure for granting third-country nationals (who are not EEA and Swiss nationals) the right to reside and work in a EU member state on the basis of a single permit. The single permit is meant to replace separate residence and work permits issued through distinct procedures.
The single permit was intended to be implemented in all EU member states by end of 2013, except in UK, Ireland and Denmark. Belgium has experienced particular issues related to the implementation of the single permit due to the division of competences between the federal and regional governmental levels that share responsibility for granting residence and work permits respectively. The implementation of the single application procedure and permits is taking place on 1 January 2019.
single application procedure
The point of departure in the single application procedure will be the submission of the complete application package, including supporting documents related to both employment and residence, with the competent regional employment authority which decides on the work authorization. The regional employment authority receiving the application package will forward it to the Immigration Office which will decide on the residence authorization.
Both authorities will keep each other informed of their respective decisions and eventually inform the applicant of their final decision. In case of a positive decision, the applicant can apply for the single permit at his local town hall if they are already residing in Belgium or collect their visa at the Embassy. The applicant will then receive a single permit at their local town hall upon arrival in Belgium.
implementation of other European single permits for specific categories of foreigners
Other European single permits that hold more favourable conditions for certain categories of foreign workers, i.e. intra-corporate transferees (ICT), trainees, students and researchers, can only be introduced upon implementation of the single permit.
The EU ICT single permit paves the way for an unprecedented EU-wide permit for third-country nationals. It gives them the right to work in multiple EU member states, provided they are temporarily assigned to an entity of the same corporate group to which their employer belongs. The EU ICT permit concerns managers, specialists and trainees.
The researchers, trainees and students single permits also have some interesting features. Students and researchers will be allowed to stay in the EU member state of their residence for up to 9 months after their studies or research project to find a job. Belgium has opted to extend that period up to 1 year. This is a welcome development as retaining foreign students was a challenge in the Belgian context. The intra-EU mobility of students and researchers will be facilitated as well.
Changes in Practice
In Belgium, the introduction of a single permit and a single application procedure will entail a significant change to the existing framework that regulates the authorization to reside in Belgium for work purposes. The single application procedure will apply when the individual envisages residing in Belgium for work purposes for longer than 90 days. Access to the labour market will be specified on the single permit by means of a record. When the residence status of a foreigner in Belgium is not primarily based on their employment, no additional application for a work authorization will be required and the reference regarding the access to the labour market will be made on the permit.
In practice we will witness the abolishment of certain types of work authorizations, such as work permit type C, currently issued for i.a. students. Likewise, family members of foreign nationals working in Belgium will no longer be required to apply for a work permit. At the same time, some categories of foreign workers currently exempted from the work permit, such as researchers, will be required to go through the single application procedure prior to taking up employment in Belgium.
It is important to point out that work permits will continue to be issued for individuals whose employment in Belgium does not exceed 90 days and for individuals who do not intend to reside in Belgium for longer than 90 days, even if they work for a longer period of time. This will be the case for frequent business visitors and individuals working on projects.
New Policies in Flanders
Besides the changes linked to the implementation of the European legislation in Belgium, the Flanders Labour Ministry has confirmed the upcoming policy changes concerning the employment of foreign nationals. Flanders is the first region to introduce new policies after this competence was transferred to the regions in 2014. The policy is aimed at enhancing the investments in the region and addressing the labour needs of companies in Flanders which experience difficulties finding certain profiles on the local and European labour market.
Foreign workers who will be treated in a privileged way include highly-skilled workers, blue card qualified persons, executives, researchers and ICT. They will be granted work authorizations for a maximum period of 3 years, which will lead to a considerable decrease of the administrative burden for companies with regards to renewals. Work at client sites will be facilitated as new authorization will not be required for every location, providing the places of employment have been specified in the initial application. Currently, a new work permit is required.
Contrary to earlier announcements, salary thresholds will not differ according to the positions of the highly-skilled foreign workers. It is worthwhile emphasising that differences in salary thresholds are maintained for different categories of single permit holders: i.a. highly-skilled workers, blue card holders and foreign workers in managerial positions.
Flanders has, however, decreased the salary threshold to 80% of the salary threshold for highly-skilled workers under age of 30. This is a particularly positive development as it was challenging for companies to hire young talent due to the relatively high general salary requirement. Furthermore, trainees will be allowed to work for up to one year in Flanders in line with currently applicable rules.
To fulfil the growing demand for technically-skilled labour forces, Flanders is also introducing a flexible shortage occupations list. The list will be coordinated with the Employment Agency in Flanders, VDAB, in consultation with the Social-Economic Council of Flanders. The shortage occupations list will include categories such as nurses and IT related profiles. The validity of the work permits for this category will be 1 year. However, after 4 years of employment all foreign workers will have unlimited access to the labour market.
Furthermore, Flanders has abolished the general requirement of international agreements with countries of origin of the foreign workers which was applicable to work permit applications that did not fall within specific categories allowed to the labour market. If the labour market testing is successful for an individual application, this will be sufficient to be granted work authorization. Currently, for such applications negative decisions are issued and an appeal procedure is compulsory to obtain a derogation from the rules. The simplification from a procedural point of view in this respect is particularly welcome.
The new policy in Flanders is a long-awaited and positive development that allows companies to address their needs in times of rising economy and high demand for human resources. Fragomen expressed the hope that the implementation of the new legal framework will facilitate international mobility to fulfil the needs of corporations. Although some of our recommendations, such as the accredited sponsorship (companies which are assumed to comply with the criteria for employing foreign nationals and therefore have process facilitations) and adaptation of the townhall registration process have not been implemented, we welcome the simplification of procedures and the pragmatic approach taken by the Flemish government.
SAVE THE DATE: Fragomen Belgium Seminar on Immigration
Belgium is currently facing important developments in the area of migration. The developments in Flanders are particularly interesting, as a more favourable foreign workers policy will be introduced in 2019. Join Fragomen in Brussels on November 29 as we explore the latest developments in Belgian immigration laws and policies, and explain how they can benefit Belgian employers.
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