Belgium limits right to unlimited residence and in-country applications

Employers and employees should be aware of the new restrictions put in place by the Belgian government. Unlimited residence rights will no longer be available for posted workers, while in-country single permit applications will be limited.

Unlimited residence

Foreign workers which are granted a work authorization for Belgium are overall awarded with a temporary right of residence. Depending on the applicable work authorization, this temporary right of residence will range between 1 and 3 years but can be renewed.

At the earliest after five years of residence, the immigration office can award the applicant an unlimited right of residence. The unlimited right of residence comes with an exemption to the obligation to secure a work authorization.

Since 1 September 2020, however, the Belgian government has decided to restrict access to this right of unlimited residence to foreign nationals that can show local employment only, as it wants to underline the temporary nature of a posting. Third country nationals posted to Belgium – who remain linked to an employer outside of Belgium and typically not covered by Belgian social security – will therefore in principle no longer be granted an unlimited right of residence in Belgium after five years.

For example: a US national, living and working in Belgium for five continuous years can obtain a right to permanent residence, but only if he/she has been employed with a local Belgian employment contract. Should the US national be posted to Belgium for these five continuous years – and thus remain linked to the US employment contract – he/she will no longer be granted permanent residence but will need to continue to renew the work and residence authorization.

Employers and employees should be aware of the continuous administrative burden this creates.

Change of status

Foreign nationals already legally residing in Belgium can experience restrictions when filing single permit applications.

Single permit applications submitted by a foreign national already legally residing in Belgium (right of residence for more than 90 days), which is already awarded access to the labor market, will be deemed void and will not be treated. Concretely, foreign family members will be impacted as they will no longer be able to change their status from dependent to highly qualified worker in country.

For example: A Japanese national obtains a single permit for Belgium and moves to Belgium. Her spouse moves with her, without having secured a job. Once arrived in Belgium, this spouse will still benefit from an unlimited right to the Belgian labor market as a dependent spouse. However, should the spouse wish to set up his own right to work and reside in Belgium – and thus no longer be perceived as a dependent – this can no longer be achieved from within Belgium. The spouse would have to start a separate work authorization procedure from in the home country.

This change in legislation will not impact single permit applications filed from abroad or renewal applications filed in country. The right to work – applicable to family members of single permit holders – will also not be impacted. Lastly, this change in legislation will not be applicable to students and researchers.

Looking towards the future

While the aforementioned restrictions have entered into force on 1 September 2020, the Belgian government is putting forward several positive measures as well. One of which being the full entry into force of the ICT Directive in Belgium. As from October first, Belgium will fully implement this legislation specifically focusing on allowing multinationals to transfer and assign within their group companies managers, specialists and graduate trainees both into and within the EU member states. By doing so, Belgium will finally implement the most extensive mobility rights for third country nationals seen to date, as beneficiaries of the ICT Directive can benefit from an exemption from Schengen visa obligations. More news to follow.