Immigration
Belgium | Changes to the Flemish immigration policy for employing foreign nationals
Context
In Belgium, the legislative framework concerning the employment of third country nationals is under construction, since the federal state, as well as the different regions, are currently changing their legislation. These changes are mainly caused by the obligation to transpose the revised EU Blue Card Directive (Directive 2021/1883 of 20 October 2021) into Belgian legislation. Access to the labour market is a regional competence in Belgium, due to which the transposition of such EU legislation must be done on a regional level. In addition, the regions have seized this opportunity to also make other changes to their respective labour market policies.
In light hereof, the Flemish government has published a new decision of 8 March 2024 in the Belgian Gazette on 28 March 2024. This new Flemish decision has entered into force on 1 May 2024. In the Brussels region, the Brussels parliament has accepted a legislative act (i.e. ‘ordonnance’), which has also already been published. A decision from the Brussels regional government is however still required in order to change the actual ‘access to the Brussels labour market policies’, which is only expected by the end of 2024. The Walloon region has also expressed their intention to alter their legislation on economic migration. However, for now, they are yet to publish their proposed ministerial decision.
Effective Changes in the Flemish region
Since the new Flemish decision contains many changes, we are only highlighting the changes that will have the biggest impact on companies, when employing third country nationals in the Flemish region. It is useful for companies to reassess and restructure their immigration strategy as other options may now be more appropriate for employing third-country nationals in Belgium.
a) Holders of a single permit can perform a flexi-job without requiring an additional authorisation to work
The general rule, set forth in article 4 of the old Decision of the Flemish Government of 7 December 2018, stipulates that the authorisation to work for a fixed duration is delivered exclusively for one employer. However, the new Flemish decision will introduce the concept that holders of a single permit issued for a fixed duration, will be allowed to perform ‘flexi-work’ (under certain conditions). Thus, working for an additional employer besides the main working activities for the employer mentioned on the employment approval letter, without requiring an additional authorisation to work.
b) More possible work authorization exemptions for business travelers
The new Flemish Decision has revised article 16, which contains the exemptions from the work permit requirement. Previously, only two categories of activities were exempted, while in the new Flemish decision a category has been added.
Article 16(1) now also 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.
It is important to note that these exemptions must be interpreted strictly, which means that any activity which does not fulfill the conditions laid down in article 16 still requires a work authorization.
c) Changes for Medium-skilled and Lower-skilled profiles
Article 18 has also been amended, which describes the rules for employers to obtain a work authorization for their third country employees who do not fall within the scope of a specific category mentioned in the Flemish decision (for example: EU Blue Card, ICT, highly skilled, specialized technician, etc.). For these employees, a work authorisation is issued to the employer based in Belgium, only when the employer can prove that it is not possible to find an employee suitable for the job on the Belgian labour market within a reasonable period of time. This is the so-called ‘labour market test’.
As from 1 May 2024, the employer should not only publish the job advert at the VDAB (Belgian platform), but also on the EURES platform in order to reach a broader public (EU platform). Furthermore, based on article 18 §2 this so-called ‘labour market test’ is not required in case the job function is included on a list which is published by the Minister. This list confirms a structural labour market shortage for these functions (the so- called ‘bottleneck professions’). Such a list was already existing, however, it was only updated every two years. The wording has now been altered to ‘at the latest every two years’, implying that this list can be updated whenever this is deemed necessary by the Flemish government. This change should allow for a more dynamic approach, to counter a situation where the list would be outdated due to for example the economic situation and shortages in the Flemish region.
d) European Blue Card holders in the Flemish region
Until now, employers and employees have been reluctant to apply for a European Blue Card in Belgium,(hereafter EBC), as it offers few advantages compared to the single permit in the highly qualified category. For instance, the EBC can only be used for locally hired employees and there is a higher salary threshold which makes this category less favorable compared to the other available categories. Nevertheless, in light of the transposition of Directive 2021/1883 into national legislation and its implementation in the Flemish decision, there are notable changes, such as:
● The short-term mobility: An EBC holder in a different EU Member State can work in the Flemish region in Belgium for a period of 90 days in 180 days without an additional authorisation to work, in case the working activities in Belgium are based on an employment contract in the EU country and are for the benefit of that legal employer;
● An applicant for an EBC requires a level 6 VKS qualification degree. This equals a bachelor degree. However, the new Flemish decision now also accepts an equalization of relevant experience to fulfill this requirement in specific limited sectors;
● Less restriction: Whenever a new employment agreement is concluded between a EBC holder and a new employer within the first 12 months of employment, a notification must be made towards the regional authorities, instead of submitting a new application.
These changes might have a positive impact on the number of EBCs that will be applied for going forward, since the above changes might make them more attractive to employees. The EBC may also become more attractive for employers wishing to employ third-country nationals who, for example, are already working in Belgium with an EBC. A ‘simple’ notification to the authorities will now be sufficient instead of filing a new permit application in light of changing employers.
Conclusion
Even though the transposition of the Blue Card Directive should have already taken place before 18 November 2023, the Flemish region has now transposed it together with some other important changes to their labour market policy.
Therefore, companies employing third country nationals in Belgium should now reassess their immigration strategy to verify whether their current strategy is still in line with the changed legislation.
In case employers have medium-skilled or lower skilled profiles working in the Flemish region in Belgium on the basis of previously granted single permits, it is worth to already verify whether these can still be extended in the future. Stricter conditions are now applicable to these categories due to which this might no longer be possible.
Vialto Partners is continuously following up on the practical implementation of these changes in the Flemish Region and the upcoming changes in the Brussels and Walloon Region. We can partner with you to rethink your global mobility strategy and assist with all compliance formalities.
Contact us
For a deeper discussion on the above, please reach out to your Vialto Partners point of contact, or alternatively:
Joke Braam
Director (BE)
Ajshe Miftari
Director (BE)
Silke Van Bauwel
Manager (BE)
Fabian Gielis
Associate (BE)
Further information on Vialto Partners can be found here: www.vialtopartners.com
Vialto Partners (“Vialto”) refers to wholly owned subsidiaries of CD&R Galaxy UK OpCo Limited as well as the other members of the Vialto Partners global network. The information contained in this document is for general guidance on matters of interest only. Vialto is not responsible for any errors or omissions, or for the results obtained from the use of this information. All information is provided “as is”, with no guarantee of completeness, accuracy, timeliness or of the results obtained from the use of this information, and without warranty of any kind, express or implied, including, but not limited to warranties of performance, merchantability and fitness for a particular purpose. In no event will Vialto, its related entities, or the agents or employees thereof be liable to you or anyone else for any decision made or action taken in reliance on the information in this document or for any consequential, special or similar damages, even if advised of the possibility of such damages.
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Further information on Vialto Partners can be found here: www.vialtopartners.com
Vialto Partners (“Vialto”) refers to wholly owned subsidiaries of CD&R Galaxy UK OpCo Limited as well as the other members of the Vialto Partners global network. The information contained in this document is for general guidance on matters of interest only. Vialto is not responsible for any errors or omissions, or for the results obtained from the use of this information. All information is provided “as is”, with no guarantee of completeness, accuracy, timeliness or of the results obtained from the use of this information, and without warranty of any kind, express or implied, including, but not limited to warranties of performance, merchantability and fitness for a particular purpose. In no event will Vialto, its related entities, or the agents or employees thereof be liable to you or anyone else for any decision made or action taken in reliance on the information in this document or for any consequential, special or similar damages, even if advised of the possibility of such damages.
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