The Withdrawal Agreement protects the right of residence for UK nationals and their families who have been living in Belgium. It also protects the exit and entry rights of UK frontier workers in Belgium.
Belgium has opted for an extended application period lasting until 31st December 2021 in order to make sure you have sufficient time to submit your application. During this period, the rights of UK nationals living in Belgium before the end of the transition period, and their family members, are protected.
We strongly recommend that you apply as soon as possible in order to protect your rights for the future and ensure as smooth a transition as possible. You can apply for your new card from 1st of January 2021 until the 31 of December 2021.
The new residence document
If you have a residence right, you will receive a residence card for beneficiaries of the Withdrawal Agreement (M card). This card has a validity of 5 years, after you which you can renew your card or apply for a permanent residence right.
The new document for local border traffic
If you have a status as a frontier worker, you will receive a card for local border traffic as beneficiaries of the Withdrawal Agreement (N card). This card has a validity of 5 years, after you which you can renew your card.
Download the full letter from the Belgian State Secretary for Asylum and Migration.
The most frequent questions immigration providers receive from clients are:
∞ What Brexit scenario should we prepare for?
∞ When should we start preparing?
∞ How should we prepare?
Answering these questions is difficult, but not impossible.
Preparing for a soft or a hard Brexit?
So what scenario should you prepare for? To answer this question, companies should look at what decision makers are currently doing. Both in the UK and in the EU (at EU and at national level) decision makers keep highlighting their commitment to finding a deal. However at the same time, everyone is also preparing for a no-deal scenario. For example, the French government published a draft law in November 2018 to create a no-deal legal framework. Other countries, such as Germany, Netherlands, Sweden, Italy, Czech Republic have made public their no deal preparations as of the beginning of 2019. In addition, the European Commission published three communications last year – one in July, one in November and one in December – urging all stakeholders, from national administrations to citizens and economic operators, to prepare for a hard Brexit.
This is indeed the most cautious thing to do. On the one hand, possible disturbances caused by a hard Brexit could be very costly for companies. On the other hand, all the efforts put into preparing for a hard Brexit would not be wasted if, eventually, a soft Brexit occurs. Why? Because the hard Brexit and the soft Brexit scenarios are in the end not so different from each.
Three main aspects distinguish them. The first one is the two year transition period (30th of March 2019 – 1st of January 2021) which would be implemented only if the Withdrawal Agreement is ratified and enters into force by 30th of March 2019 (soft Brexit).
The second one is the level of protection to be granted to UK/EU nationals residing in the EU/UK prior to the Brexit day (less generous in case of a hard Brexit). And the third one is the nature of the future EU-UK relationship. In a hard Brexit scenario there would be no time to negotiate. So, from an immigration perspective, we would fall back immediately on already existing immigration schemes (GATS mode IV, EU permits, national permits) as of 30th of March 2019. This does not mean however that, in the future, this could not be re-negotiated and amended. In a soft Brexit scenario, there would certainly be talks about the future arrangements during the transition period, and some more ambitious schemes could be put in place.
Nevertheless, understanding what impact Brexit will have on current employees and future employees is crucial for all businesses. And some of this analysis will be the same in both scenarios. The major consequences will be felt only two years later if there is a soft Brexit. Yet, the sooner companies start preparing, the better chances they stand to avoid all possible disruptions and negative consequences on their employees.
When should companies start preparing?
Ideally, preparations should already be on-going. Although there is still a lot of uncertainty, companies and employees can already take steps to protect their rights and prepare for the future, irrespective of what the future will look like. All concerned people must make sure they are making use of all existing tools and schemes already in place and that they are ready for when new ones will be available for them.
How should companies prepare?
The first thing to do is classify the stakeholders within the company who will be impacted. Some of the stakeholders are easy to identify: EU nationals locally hired in the UK or UK nationals locally hired in an EU country. But Brexit might also have an impact on cross border workers, business travellers, employees temporarily assigned in the UK or an EU country, and even third country nationals in some situations. Moreover, Brexit will also impact future employees. Therefore, recruiters and HR departments must be aware of how their work will be influenced by Brexit.
Once the stakeholders are identified, it is crucial to put a communication strategy in place with tailored messages to all groups of stakeholders. Employers should reassure employees to make sure they retain them. In addition, they should train recruiters and HR specialists to help them understand the implications of a soft or a hard Brexit.
The third step – not necessarily in a chronological order as some of these steps can be taken simultaneously – would be to collect data about the impacted employees. It is no longer sufficient to know who they are. Companies must also have information about their length of stay in the host country, nationality of their family members, type of employment, employment conditions, education, etc. All of this data is necessary to create preparedness strategies and contingency plans.
And lastly, get ready to implement these strategies and plans. Brexit is an ever changing landscape and is very difficult to keep up with. There are no exact deadlines, no exact timelines, no precise outcome. Companies must be flexible. They must make sure they have all the necessary resources and are ready to act at any time. With all the uncertainty around Brexit, only one thing is certain. As cliché as this may seem, companies should definitely hope for the best, but prepare for the worst.
With thanks to Andreia Ghimis, Senior Consultant EU Government and Client Advisory at Fragomen
ReLocate does away with all the drama and takes a “stiff upper lip” look at Brexit. We’ve consulted leading immigration law firms Fieldfisher and Fragomen, who in preparing their own clients for change during and after Brexit negotiations, have shared a few practical steps with us to keep us on the straight and narrow.
Overview of Outcomes
Yes, uncertainty is set to reign until negotiations commence in early 2017. Considering that the European Treaty established a negotiation period of at least two years in case of an exit, it is unlikely that there will be any immediate changes in the near future.
These negotiations could have a wide range of outcomes:
• The Norwegian, Icelandic and Lichtenstein model: the UK would remain subject to the majority of EU legislation, however there would be no role played in the decision-making process and no right to veto, including no independence from EU legislation nor the European Court of Justice;
• the Swiss model: ability to develop mutual agreements with the EU;
• the Turkish model: remaining part of the Customs Union;
• the “sui generis” model*: a completely new approach to UK / EU relations;
• total withdrawal from the EU*: if this is to occur, there would be swift changes to UK legislation.
From an International Business Perspective – Fieldfisher
Companies are best advised to anticipate change and ensure they are in a position to identify possible issues that need to be addressed as they arise. In doing so they can reassure staff on all levels. So what could possibly change? Establishing which regulations may be the most heavily impacted can be difficult, Fieldfisher has broken down the main points to be addressed into three main areas to be assessed within internationally operating companies: social security/welfare, employment law and of course, immigration. Fieldfisher has highlighted the existing regulations that may be affected, and what the knock-on effects of these changes may be.
1. SOCIAL SECURITY / WELFARE
883/2004 and 987/2009: regulates the social security scheme applicable to internationally mobile workers
These regulations are likely to be repealed once the UK leaves the EU, and the mutual treaties previously established between countries will once again be activated.
• The original mutual treaties limit the determination of the social security/welfare scheme to be applied and benefits covered therein;
• they do not provide for any regulation on simultaneous employment (two or more social security/welfare schemes operating at the same time);
• they do not systematically provide for regulations on accumulation of social security/welfare benefits/entitlements;
• they do not systematically provide guaranteed rights in respect of health/sickness costs.
2. EMPLOYMENT LAW
593/2008: determines the law applicable to employment contracts in a cross-border situation
Employment contracts between EU and UK will no longer be viewed in the frame of the “free movement of workers” principle.
UK legislation will have to be rigorously applied in cases of EU staff employed in the UK being brought before a UK court with an extraneous element, and vice-versa. When UK employers employ staff on EU territory, they will have to rigorously apply the legislation of that EU state.
3. IMMIGRATION – from a business perspective
This is still a hot topic of speculation. The UK Government could implement a points system not unlike that of Australia, although there have been indications that this is not preferred by the May administration. The UK borders are unlikely to close completely, however the UK Government is expected to implement some forms of restriction before the “divorce date” to limit a massive influx of people.
The knock-on effects of changes to immigration between UK and the EU are wholly dependent on the outcome of the negotiations. If the right to free movement ceases to apply or is restricted, those businesses built on sourcing international talent will then have to look to the new immigration and employment rulings for guidance regarding any future employment. Attempts to limit net immigration to tens of thousands will then result in severe restrictions to the pool of potential employees in the UK.
Fieldfisher’s advice on handling these potential changes within businesses:
• “Nominate a person or team of people who are responsible for monitoring employment issues. Ensure all staff have a contact person to whom they can address questions or express concerns in all the countries in which the organisation operates. This will ensure that all staff, wherever located get the same consistent message which in turn will give reassurance that the organisation knows what it is doing and what needs to be done as we approach Brexit.”
• “Staff may feel unsettled and anxious about how restriction to free movement may affect their right to live and work in the UK or other EU member states. Given the fact some EU legislation will be repealed, international mobility policies may need to be assessed and adapted, and ensure specialist advice is utilised.”
• “Encourage workers to list their entitlements to pension and other social welfare benefits when starting to work outside the UK.”
“The criteria for nationality applications are not always more demanding than those for long-term or permanent residency, and nationality is the more secure option to guarantee residence rights in the long term.” – Jo Antoons, Fragomen
From an Individual’s Perspective – Fragomen
Companies and individuals are naturally concerned about what Brexit will mean for EU nationals living in the UK and for UK nationals who are residing in another EU country. While UK politicians figure out what approach they will propose for those affected, individuals are wondering what actions they can take now. Fragomen suggest three key points of consideration for UK citizens currently living, working or studying in an EU member state who wish to take measures to safeguard their mobility rights.
1. REGISTER YOUR RESIDENCE IN THE HOST COUNTRY
According to Fragomen the first action step is to register your residence if this was not already done. UK citizens without a residence document who have been residing for more than three months in an EU member state should be encouraged to contact the national authorities and obtain one. Not all EU countries impose registration regulations on EU nationals, and in this case obtaining an official residence document before a divorce date is the safest way to avoid grey areas and maintain your right to reside in the EU even after a formal separation.
2. APPLY FOR PERMANENT RESIDENCE
Permanent residence rights and regulations vary from EU state to EU state. Some require five years of legal residence, some (including Belgium) request only three years when specific conditions are met. Fragomen suggest this action step with two reasons in mind:
• This confirms that you fulfill the requirements for the right to permanent residence, useful in cases of long absences from the EU member state where you currently reside;
• this maintains as many other rights as possible after Brexit. British EU permanent residence holders may have their status automatically transformed to that of non-EU nationals, whereby they are granted long-term residence for the whole of the EU or just the country where they currently reside.
EU or national long-term residence does not boast the same breadth of rights as EU permanent residence, however it does guarantee the right to continue residing in the host member state.
3. APPLY FOR NATIONALITY – but only if it is the right option for you
Obtaining the nationality of the EU country where you have been residing may appear to be the obvious option, however, before taking on an additional nationality, ensure that you’ve considered what is involved in the application process:
• Is dual citizenship allowed in your host country?
• What knock-on effects may a change in nationality have on your taxation status?
• Would this lead to a loss of rights? For example, some EU states grant less generous family reunification rights to citizens as opposed to those granted by EU free movement legislation.
That said, criteria for nationality applications are not always more demanding than those for long-term or permanent residency, and nationality is the more secure option to guarantee residence rights in the long term. Nationality can only be revoked in exceptional circumstances, while residency can be lost after two consecutive years of absence from the host country.
It is essential for businesses to maintain their own sense of structure and identity in this time of uncertainty. When approaching Brexit from an individual’s perspective, each unique personal situation must also be taken into consideration before making a decision. If we are able to maintain a sense of order, promote clarity and adaptability within organisations and keep open channels of communication we will ensure the best outcomes are achieved and business operations and lives carry on as calmly as possible.
With thanks to Stefan Nerinckx of Fieldfisher and Jo Antoons of Fragomen.
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