Immigration
Changes to the Brussels and Walloon immigration policies for employing foreign nationals
Summary
Following immigration law changes announced for the Flanders region (see our alert here for more), the Brussels and Walloon regions have also announced upcoming changes in immigration policy and legislation. These were inspired by the obligation for implementation of the EU Blue Card, but actually extend to different aspects of their foreign worker policies. The changes mentioned we will discuss in this newsletter, are significant and will have an impact for businesses and highly qualified employees.
Context
In our last immigration newsletter, we already indicated that the legal landscape governing employment for third-country nationals in Belgium has been under construction, due to the implementation of Directive 2021/1883, known as the revised EU Blue Card Directive, into Belgian legislation, as well as other Directives. The occasion of the last newsletter was the publication of the Flemish Ministerial Decision of 8 March 2024, which entered into force on 1 May 2024. In our last newsletter, we discussed how the Flemish region implemented the revised EU Blue Card Directive, but also how they used this opportunity to make other significant changes to their whole ‘access to the labour market by foreign employees’ policies. At the moment of writing our last newsletter, we knew that the Brussels and the Walloon regional authorities were making the same exercise, but when the results of these exercises would become public was not known yet at that moment in time.
Currently, both new legal documents have been published and it is known when the new policies will enter into force. Hence we share this new newsletter with you discussing the significant new changes for your foreign personnel in the Brussels and the Walloon region. The new decision of the Brussels regional Government of 16 May 2024 will enter into force on 1 October 204, while the Walloon Decision of 6 June 2024 will already enter into force on 1 September 2024.
Effective Changes in the Brussels Capital region
The decision from the Brussels Regional Government of 16 May 2024 executing the ordinance of 1 February 2024 concerning economic migration, laid down a new legal basis for the access to the Brussels labour market for foreign employees, as well as a new legal basis for the performance of self-employed activities by foreign nationals. This newsletter will currently only focus on the new policy for foreign employees in the Brussels region, however questions regarding the new process for self-employed foreign nationals in the Brussels region can always be directed to Vialto Partners as well.
Furthermore, the new Brussels legislation will enter into force on 1 October 2024, which means that the work authorization applications submitted prior to 1 October 2024 will still be treated under the old legislative framework by the Brussels regional employment authorities.
Simplified wage calculation: average gross monthly salary
For applications submitted as from 1 October 2024, the applicable salary thresholds per work authorization category will be determined based on a specific percentage of the average gross monthly salary in the Brussels region, which is currently set at EUR 4604. This means that as from 1 October 2024, the following salary thresholds will have to be met in the following work authorization categories:
| Work authorization category | Percentage of average gross monthly salary | Gross monthly salary amount |
| Higher Management | 140% | € 6.445,60 |
| Highly qualified personnel | 78% | € 3.591,12 |
| European Blue card | 100% | € 4.604,00 |
| Managerial ICT | 115% | € 5.294,60 |
| Specialist ICT | 95% | € 4.373,80 |
| Intern-employee ICT | 55% | € 2.532,20 |
Regarding the applicable salary thresholds per specific category, the new Brussels legislation refers to the employee’s gross monthly salary, which is defined as the base salary (without any other additional salary components, such as holiday pay and thirteenth month). We are still in discussion with the Brussels employment authorities on how this new limited salary definition will be interpreted towards foreign employees with a Belgian employment agreement versus foreign employees with a foreign employment agreement, assigned to Belgium. We hope to soon receive clear feedback on this item from the Brussels regional employment authorities, however the idea of the new legislation is that any additional salary components or other benefits can not be taken into account anymore when determining whether the applicable salary threshold is met.
Foreign employees whose applications were submitted before 1 October 2024 will have to continue to meet the annual salary threshold of EUR 5.0310 gross until 31 December 2024, in order for their single permit to remain valid. As from 1 January 2025, the new gross monthly salary amounts will have to be respected for these single permit holders as well.
Furthermore, the new Brussels legislation does not mention a yearly assessment requirement anymore for single permits who are valid for more than one year. The goal of this yearly assessment was to check if the salary thresholds were met on a yearly basis, but this check will now happen automatically by the Brussels regional employment authorities, thus it is not required for the employer anymore to submit these assessments. But it remains important for employers of foreign employees to make sure that the specific salary conditions are respected, in order for the single permits to remain valid.
No managerial category anymore
The managerial category from article 9,7° of the Royal Decree of 9 June 1999 does not exist anymore in the new Brussels governmental decision of 16 May 2024. For the employees previously falling into this category, a solution can either be found in the highly skilled category (if these conditions are met) or in the new exemption ground for the higher management personnel (but also only if these specific conditions are met because there is a quite stringent definition).
Implementation of EU Blue card directive
The new rules for the Blue Card holders in the Brussels region are somewhat similar to the rules implemented in the Flemish region by the Flemish Decision of 8 March 2024 for the Blue Card holders. For Blue card holders it will also become easier to change employers in the Brussels region, and in specific sectors, work experience and professional competences can be used to prove that the educational requirement within the EU Blue card category has been met.
Unfortunately, the Brussels decision of 16 May 2024, didn’t mention the mobility rights for the EU Blue Card holders. This means that there is currently no legal framework for EU Blue card holders, issued in other EU countries, to use their short term mobility rights (eg. quicker access to the labour market or possibility to be exempted from the work authorization requirement) in the Brussels region. Vialto Partners has flagged this towards the Brussels authorities, who indicated they would check how the mobility rights can still be implemented in the Brussels region.
New listing of work authorization exemptions
Article 18 of the Brussels decision of 16 May 2024 confirms which activities performed by foreign employees in the Brussels region are exempted from the work authorization requirement. It makes a distinction between the activities that are exempted as long as the employee’s stay in Belgium remains limited to 90 days, and the activities that are exempted regardless of the employee’s stay in Belgium:
Effective Changes in the Walloon region
The decision of the Walloon government from 6 June 2024 concerning the work authorization for foreign employees has been published in the Belgian Official Gazette on 12 August 2024, and replaces the old Walloon Governmental decision of 16 Mai 2019. For applications submitted as from 1 September 2024, this new legislation will become applicable.
Please find hereby an overview of some of the most relevant changes for your international personnel in the Walloon region:
General rule for work authorizations in the Walloon region: labour market shortage
Article 2 of the Walloon decision of 6 June 2024 lists the general conditions that have to be met in order to obtain work authorization in the Walloon region. The general rule was, and will still be, under the new legislation, that a foreign employee will be given work authorization in the Walloon region as long as the employer can prove that another employee can not be found among the Walloon workforce within a reasonable timeframe to fulfill the specific position that the foreign employee will take up.
The new Walloon decision did not change this general rule. However, there is a list of some new situations that will automatically prove the fulfillment of the labour market shortage condition. One of these situations is the fact that the specific position is mentioned on the official Walloon list confirming the bottleneck professions in the Walloon region. Another situation that would automatically fulfill the labour market shortage condition would be if FOREM (eg. Walloon Office of Vocational Training and Employment) can confirm that they can’t find a suitable candidate for the job position of the foreign employee. In case one of the listed situations is not applicable, the employer can still try to prove the labour market shortage by all means of evidence, but it will be up to the discretion of the Walloon authorities whether or not the labour market shortage has been proven.
Finally, the new Walloon decision confirms again that the labour market shortage condition is not applicable if a work authorization application is submitted within a specific category (eg. highly skilled, european blue card, etc).
New work authorization exemption grounds
The old article 15, which used to list the specific activities performed by foreign employees that are exempted from the work authorization requirement in the Walloon region, has been revised and changed into the new article 65, that makes a distinction into 4 types of work authorization exemption grounds:
A new exemption ground is created in this second exemption category under article 65, §2(1) which provides an exemption for persons who “carry out temporary commercial activities related to the employer’s business interests, where no services or goods are supplied“: for example attending conferences, seminars, internal and external business meetings, participating in the negotiation of business contracts, participating in sales or marketing activities and giving or attending training courses. This exemption has a maximum duration of 90 days in a 180-day period. For this category of travelers, a Limosa declaration should still be obtained before starting these activities in Belgium.
Highly qualified junior staff
Both within the highly qualified category, as within the European Blue card category, the new Walloon decision of 6 June 2024 also introduced a lower salary threshold for employees who have not reached the age of 30 years old at the moment of submission of the work authorization application. For these foreign employees, the applicable salary thresholds will be lowered to 80% of the normal salary threshold.
Implementation of the EU Blue Card Directive
The more favorable changes for EU Blue card holders in the new Flemish and Brussels legislation, can also be found in the new Walloon legislation (eg. easier to change employers, and work experience or professional competence as proof of educational requirements in specific sectors). Furthermore, we were also happy to see that the EU mobility rights for EU Blue card holders, issued in other EU countries were also implemented accordingly in the Walloon region, as article 65,§1,°2 of the new Walloon decision exempts EU Blue card holders, issued in another EU country, from the work authorization requirement, as long as the activities of the Blue card holder in the Walloon region will be limited to 90 days within a 180 days time frame.
Conclusion
The legislative changes in the Brussels and Walloon regions regarding employment activities by foreign nationals are very extensive and diverse. Employers in multiple different sectors, who are employing foreign nationals in the Walloon or the Brussels region, could be impacted by one of the many changes from the new legislative frameworks. We have therefore chosen to highlight the most relevant changes in this newsletter, however we are always ready to also answer any questions on any specific immigration chance in both regions (perhaps not mentioned in this newsletter).
Taking into account these upcoming changes in the Walloon and the Brussels region, as well as the previous changes in the Flemish region, it becomes also important for employers to reassess and restructure their immigration strategy, as other options may now be more appropriate for employing third-country nationals or as new conditions might become applicable in order for their international personnel to continue their activities in Belgium.
Furthermore, we also have to conclude that there are still clear and obvious differences in the new policies amongst the different regions, despite the general European initiatives to harmonize immigration procedures for certain labour migrant categories among the EU member States. Whether your foreign employees will perform working activities in the Brussels, Flemish or Walloon region, can have a significant impact on whether or not work authorization will be required and/or which conditions for the work authorization have to be adhered to. In case your foreign employee might be exempted from the work authorization requirement in one region, you must not assume that the activities will remain exempted in another region as well. As such, we strongly advise employers to first determine the competent region(s), based on the employees’ working locations, prior to starting the reassessment and restructuring of their immigration strategies.
Vialto Partners can always further assist your organizations with this reassessment exercise.
Contact us
For a deeper discussion on the above, please reach out to your Vialto Partners point of contact, or alternatively
Bart Elias
Partner
Ajshe Miftari
Director
Joke Braam
Director
Silke Van Bauwel
Manager
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