Belgian work permit changes

Belgian work permit changes in 2017: New EU Intra-Corporate Transfers directive

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A new directive on Intra-Corporate Transfers has been introduced in the EU that could offer the first single work permit for third-country nationals vying to work in Belgium after approval by the government.

The European Union has introduced a revolutionary change in the law on labour migration: the Intra-Corporate Transfers (ICT) Directive. The ICT Directive will bring about a profound change in migration: it ushers in the first single work permit for third-country nationals that will support intra-EU work authorisation.

International immigration law expert Fragomen Worldwide explains how the new immigration law could affect Belgian work permits for workers eligible for intra-corporate transfers in Belgium starting 2017.

EU legislation to national law

As general background, it is helpful to understand the EU legislative procedure. A directive is an EU legal instrument that requires that member states achieve a certain result without dictating how the result is to be achieved. What this means is that after a directive is adopted at the EU level member states must transpose it in their domestic legislations. The directive will create a framework and the national legislation, working within that framework, will create the specifics of implementation in that member state.

The Intra-Corporate Transfer Directive

The ICT Directive was concluded between the EU Member States (except Denmark, Ireland and the United Kingdom) in 2014 with the aim to streamline the admission criteria for intra corporate transfers to the EU. This affects employees working for companies outside the EU who are temporarily assigned to an EU entity in the same corporate group. The Directive is specifically aimed at managers, specialists and trainees and introduces, for the first time, the right to work in multiple Member States.

The ICT introduces a procedure that provides the right to legally stay and work in one Member State, and subsequently move and work in several other EU countries via a single permit procedure. The directive will also apply to the temporary secondment of a third-country national from an undertaking established within the EU to which that person is linked by an employment contract, to another company belonging to the same multinational group within the EU. In this case, the company must have a branch outside the EU.

The exciting aspect of this directive is that it is a giant step towards single-issued work permits within the European Union, as there is now a permit scheme that provides the opportunity to travel, stay, and more importantly, work in other member states.

A secondment based on the ICT may not be longer than three years for managers and specialists and one year for trainees. Member States may require that an employee who reside in-country for the maximum three-year period leaves the country for a ‘cooling off period’ of up to six months before applying for a second ICT permit. This will make it difficult for many ICT holders to qualify for nationality or permanent residence in the relevant Member State.

Implementation of the ICT Directive in Belgium

The ICT permit will bring a significant change to Belgian immigration legislation – Belgium is one of the EU Member States where national law does not currently allow transfers within a multinational group of companies. However, Belgium must first transpose the ICT Directive into national legislation before local ICT permits may be issued.

The deadline for transposition was 29 November 2016 and at the time of publication of this article (early January 2017) Belgium has not yet taken any action to proceed with the transposition of the Directive – however, a letter has recently been sent to the European Commission informing that the existing permit for intra-group trainees should be viewed as partial implementation of the EU Directive. This is partly due to the division of powers between Belgian immigration and labour authorities and partly to the Belgian political landscape. In Belgium, responsibility for migration and labour is divided between the federal government, the regions and the local communes. Therefore, the transposition of legislation involving both residence and work rights requires considerable coordination between a number of administrative bodies.

This is a problem that has arisen before – with the Single Permit Directive. The Single Permit was to be implemented in national legislation before 25 December 2013. Now, exactly three years later, this has still not been done, despite the fact that the European Commission has referred Belgium to the European Court of Justice as a result of the serious delay in transposition. Is this an indication of what we can expect for the ICT Directive?

Hopefully not, as the ICT permit brings with it great progress towards a true single market for services. This is an opportunity for Belgium to create an attractive environment for labour mobility of highly skilled workers. In a global economy and given the strong multinational presence in Europe, businesses can benefit from a fast and clear process to transfer employees into and within the European Union. Employees can benefit from the possibility to smoothly transfer from one (geographical?) position to another without the significant burden of returning to their home country, often with their families, while undergoing the tedious process of an entirely new immigration procedure.

Finally, the ICT Directive has already been implemented in Austria, Spain, Netherlands, Bulgaria and Romania. This process is also underway in other Member States, including Luxembourg. The ICT permits issued in those Member States must be recognised in Belgium, presumably through a notification process. These details still remain to be decided by Belgian authorities.

Fragomen will closely monitor the evolution of the Belgian ICT scheme, as well as other EU law developments impacting the Belgian immigration landscape and will keep you fully informed.

Email the Fragomen team or visit their website for more information about the ICT or other work permits in Belgium.

Immigration Lawyer Christine Sullivan, Fragomen Worldwide / Expatica

 
 

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