Until recently, employing foreign workers in Belgium was subject to a dual procedure: the foreign worker concerned required both a residence permit and a work permit. In accordance with EU Directive no 2011/98/EU, it has become mandatory to issue a single permit which covers both the right of residence and the right to work and requires a single application. This Directive has, at last, been implemented in Belgian law with the entry into force, on 24 December 2018, of the cooperation agreement of 2 February 2018.

Background

Employing foreign workers in Belgium is subject to a set of very strict rules. On the one hand, foreign workers must have a residence permit for Belgium. On the other hand, they must obtain a work permit. Consequently, until recently, foreign workers had to submit two separate applications. European Union citizens, as well as several specific categories of workers, are exempt from the obligation to have a work permit.

Nevertheless, the "Single Permit Directive" (Directive no 2011/98/EU) makes a single application procedure mandatory for obtaining both a residence permit and a work permit. This directive should have been implemented in Belgian law by 25 December 2013 at the latest. However, it has only recently been implemented with the entry into force, on 24 December 2018, of the cooperation agreement of 2 February 2018 on coordination between policies on work permits and residence permits and the legislation on employment and residence of foreign workers (hereinafter the "cooperation agreement").

The implementation of the Directive required a cooperation agreement because the right of residence is a matter which belongs to the competence of the Belgian Federal State, while, in principle, employment of foreign workers has been a regional matter since the Sixth State Reform, except for the employment of foreign workers in a particular residence situation (work permit C), which remains a federal matter.

The content of the cooperation agreement

First, the cooperation agreement sets out a number of rules for determining the Region to which the application should be submitted. In principle, the competent Region will be the Region where the worker is to carry out his/her activities. If the main place of work cannot be determined, the competent regional authority will be the one for the Region where the company employing the worker has its registered office. When the application concerns a work permit with an undefined duration or an exemption with an unlimited duration, the competent regional authority is that of the worker's official domicile.

Moreover, the cooperation agreement provides for a mutual recognition principle: a single permit issued by a given Region is automatically recognised by the other Regions and therefore grants the right to work on the entire territory of Belgium.

Under the procedure to apply for a single permit, an application for permission to work must be submitted to the competent regional authority. The request, which is submitted by the employer (unless a permit with an undefined duration is being applied for) also covers permission to reside. To enable proper examination of applications, a system for exchanging information has been set up between the different competent authorities (the Immigration Office and the regional authority) for the purpose of verifying whether the granting criteria are fulfilled. The regional authority must make a decision within four months. After this deadline, permission is deemed to have been granted.

Amendment of the legislation regarding employment of foreign workers

In addition, the Regions have begun exercising their powers with respect to employment of foreign workers. The Flemish Region was the first to amend certain material rules, by means of the Flemish Decree of 7 December 2018. For instance, a new category of medium skilled bottleneck functions has been created, and the category "managerial staff" has been strictly defined. Moreover, workers who participate in training in Belgium that lasts less than three months and who carry out work in this context are exempt from the requirement to obtain a work permit.

The Walloon Region and the Brussels Capital Region have each made some technical amendments to their respective legislation on the employment of foreign workers, but they have not yet made any substantive changes.

Besides these amendments, the federal legislator has adopted several acts and royal decrees in relation to the employment of foreign workers. In this respect, the Act of 9 May 2018 on the employment of foreign nationals who find themselves in a particular residence situation, which came into force on the same day as the single permit cooperation agreement, abolishes the Act of 30 April 1999 on the employment of foreign nationals, which until then had been the fundamental piece of legislation on the subject.

Conclusion

The rules with respect to the employment of foreign workers have been fundamentally changed following the entry into force of the single permit cooperation agreement and the regional devolution of powers. Employers planning to employ foreign workers or renew a work permit should pay particular attention to the new rules that are now in force.