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Guidance for employers on the status of UK nationals in Belgium after Brexit

Belgium
05.01.21
7
Written by
Claeys & Engels offers reassurance in the full range of human resources matters and fast, efficient and pragmatic legal advice.
The Brexit transition period ended on 31 December 2020. What does that mean for UK nationals in Belgium, UK business travellers and frontier workers?

1. GUIDANCE

1.1 Has any guidance been issued on how UK nationals can obtain settled residence status and permission to work from 1 January 2021 and what proof of residence is needed for current residents to maintain their status?

Yes*

UK citizens (and their family members) living and working in Belgium or UK citizens working in Belgium as frontier workers (within the framework of free movement of employees) before 31 December 2020 will be able to continue to do so after 31 December 2020. They will have ‘Beneficiaries of the Withdrawal Agreement’ status. They will need to exchange their current EU documents (E(+)-card or F(+)-card if they live in Belgium and Annex 15 if they are a frontier worker) by 31 December 2021 for a M-card (if they live in Belgium) or a N-card (frontier workers). Their current European documents will in any event cease to be valid from 31 March 2022. The application must be made at their commune and they must submit:

  • valid Passport or identity card;
  • current European residence card
  •   E(+)-card for British citizens living in Belgium,
  •   F(+)-card for non-EU family members;
  • Annex 15 for frontier workers (or proof that they were working as an employee/self-employed person on 31 December 2020 or had sufficient means of subsistence or were registered as a student).
  • Criminal record (maximum six months old).

 

UK citizens living in Belgium will be informed individually of the procedure for applying for their new residence card as ‘Beneficiaries of the Withdrawal Agreement’.

UK citizens who do not reside in Belgium or do not work as a frontier worker in Belgium by 31 December 2020 will be considered as third-country nationals and require authorisation to work and reside unless an exemption applies.

However, the following family members will be able to join UK citizens after 31 December 2020 and will be able to live and work in Belgium provided that the relationship already existed before 31 December 2020:

  • direct family members (spouse, registered partnership, direct descendants who are under the age of 21 or dependents (and their spouse or registered partner); dependents’ direct relatives in the ascending line (and their spouse or registered partner) ;
  • partner with whom the UK citizen has a durable relationship, duly attested;
  • children born or legally adopted after 31 December 2020.

 

Those family members will need to apply for residence as ‘Beneficiaries of the Withdrawal Agreement’ within three months after their arrival or 31 December 2021.

*Relevant legislation has been approved but must still be published in the Belgian Gazette date on which it will enter into force

 

2. BUSINESS TRAVEL

2.1 Do UK employees need a business visa from 1 January 2021?

No.

Regulation (EU) 2019/592 of 10 April 2019 exempts UK citizens from the requirement for a Schengen visa. It applies from the day the UK is no longer subject to EU law, i.e. 1 January 2021.  UK citizens can enter and stay in the Schengen area for a maximum of 90 days in any rolling 180-day period.

2.2 What documents are needed on arrival for business travel from 1 January 2021?

A travel document (valid passport) with a validity of no more than ten years and that is valid for at least three months after departure from Belgium.

Proof of duration, purpose and conditions (i.e. accommodation) of stay as border control may ask additional questions concerning duration, purpose and conditions of stay. As of the end of 2022, UK nationals may have to apply for travel authorisation through the ETIAS system (European Travel Information and Authorisation System) prior to their trip.

Unless they stay in a hotel or guest house, UK business travellers will need to notify the appropriate communal administration of their presence within three working days from arrival and receive an Annex 3 form.

2.3 Do UK nationals need additional permission to work for business travel from 1 January 2021 in the event of no deal?

Even if allowed to enter and stay visa-free as third-country nationals for a maximum of 90 days in any rolling 180-day period, UK citizens might nonetheless need a work permit B after 31 December 2020. Third-country business visitors are only exempt from a work permit B for meetings ‘in closed circle’ for a maximum of 20 subsequent calendar days per meeting and 60 days in total per year. Examples of meetings in ‘closed circle’ include negotiations with customers, evaluations with staff and company strategy meetings.

Other exemptions exist such as:

  • Qualified and specialised employees who work on the initial assembly and/or installation of delivered goods, for up to 8 days. Note that this exemption does not apply in the construction sector;
  • Specialised technicians who are required for urgent maintenance work or repairs to machines delivered by a foreign employer for a maximum of 5 days per month;
  • Foreign employees coming to Belgium to test prototypes of cars or products developed by a recognised research institution for up to 4 weeks per year.

 

3. EMPLOYMENT AND RESIDENCE

3.1 Do UK nationals need permission to work and stay in Belgium from 1 January 2021? 

Yes, unless they can rely on an exemption such as:

  • ‘Beneficiaries of the Withdrawal Agreement’ (E(+)-card/ F(+)-card /Annex 15 until exchange for M-card or N-card by 31 December 2021)
  • family members of an EU national or a non-EU national who has authorisation to work (subject to conditions);
  • holders of a permanent Belgian residence permit (electronic B-card, C-card or D-card);
  • ‘Van Der Elst exemption’ which applies to employees employed by an employer located in the EEA or Switzerland (not in the UK as of 1 January 2021) and who are sent to Belgium to deliver services on behalf of their employer, on the condition that they have the necessary permits to reside for more than three months and work in the country where their employer is established (EEA/Switzerland);
  • students enrolled at a Belgian educational establishment during school holidays or outside school holidays for maximum 20 hours per week;
  • students enrolled at a Belgian, EEA or Swiss educational establishment to follow mandatory training in Belgium to obtain their degree.

 

The employer will need to apply for a work permit B for UK nationals working in Belgium for up to 90 days and a Single Permit for UK nationals to reside and work in Belgium for more than 90 days. The Single Permit is obtained via a single application procedure encompassing both permission to work and to reside in Belgium for more than 90 days as a salaried employee.

UK nationals coming to stay and work in Belgium in a self-employed capacity will require a residence permit and a professional card.

3.2 If permission to work is needed after 1 January 2021, do any quotas apply to the employment of third-country nationals? 

No.

3.3 If permission to work is needed from 1 January 2021, what categories of permission are commonly granted?         

For employees in Brussels:

  • highly skilled employees: Bachelor’s degree and annual remuneration of at least EUR 42,869 gross (2020)/ EUR 43,395 gross (2021);
  • management personnel: annual remuneration of at least EUR 71,521 gross (2020)/ EUR 72,399 gross (2021);
  • trainees (subject to conditions).

 

For employees in Flanders:

The Flemish Region applies an economic migration model based on three separate profiles:

  • highly qualified (Bachelor’s degree and annual remuneration of at least EUR 42,696 gross (2020) EUR 43,524 gross (2021) or EUR 34,156.80 gross (2020)/ EUR 34,819.20 gross (2021) for employees aged up to 30 working for a Belgian employer and other special profiles (subject to conditions);
  • certain medium-skilled profiles (only for shortage professions listed in a dynamic bi-annual shortage profession list);
  • profiles that fall into a residual category subject to a labour market test and for whom ‘special economic and social reasons’ must be established.

 

For employees in Wallonia:

The Walloon Region also applies an economic migration model based on three separate profiles:

  • highly qualified (Bachelor’s degree and annual remuneration of at least EUR 42,869 gross (2020)/(amount 2021 not yet official) but salary cannot be lower than that of comparable positions in accordance with the applicable laws, collective agreements or practices) and special profiles (subject to conditions);
  • shortage professions (annual list);
  • profiles that fall into a residual category subject to a labour market test and for whom ‘special reasons of economic or social order or of public order, public security or public health’ must be established.

 

3.4 If permission to work or stay is needed from 1 January 2021, how long does the procedure take?    

Permission to work and stay in Belgium for less than 90 days:

  • employer needs to apply for a work permit B from the competent Region: three to four weeks;
  • depending on the circumstances of the case, the employee may need to apply for a residence permit.

 

Permission to work and stay in Belgium for more than 90 days:

  • employer needs to apply for a Single Permit from the competent region: may take up to +/- 4.5 months but currently four to six weeks;
  • evidence of the absence of a criminal record (with an Apostille or legalised) needs to be submitted at the start of the procedure. Sufficient preparation time should be factored into employment plans.

 

3.5 If permission to work and stay is needed from 1 January 2021, what Government fees are payable?

Work permit B: EUR 25 to 50 (administrative fee depends on the commune)

Single Permit: EUR 363

 

4. FRONTIER WORKERS

4.1 What formalities apply to UK frontier workers working in Belgium but living in another country from 1 January 2021?      

UK frontier workers in service before 31 December 2020 are able to continue to do so afterwards as ‘Beneficiary of the Withdrawal agreement’. They will need to exchange their current Annex15 for a N-card by 31 December 2021 at the latest.

UK frontier workers coming to Belgium after 31 December 2021 need a work permit B to work in the country even if they work for more than 90 days in Belgium. The employer will need to apply for a work permit B from the relevant region. In addition, the UK frontier worker will need an Annex 15 (non-EU) from the commune of his or her place of employment in Belgium to cover the period of stay.

 

5. PERMANENT RESIDENCE

5.1 From what date are third-country nationals entitled to apply for permanent residence?        

After five years of legal and uninterrupted stay in Belgium (subject to conditions).

 

6. SECURING RESIDENCE AND WORK STATUS

6.1 What steps could UK nationals take currently to secure their residence and work status?      

  • Applying for an EU residence card (E(+)-card or F(+)-card for non-EU family members or Annex 15 (frontier worker) before 31 December 2020.
  • Applying for status as ‘Beneficiary of the Withdrawal Agreement’ before 31 December 2021 and exchange current European documents (E(+)-card, F(+)- card or Annex 15) for a M-card (living in Belgium) or a N-card (frontier worker).
  • Applying for an EU permanent residence card (E+ card or F+ card for non-EU family members) if conditions are met.
  • Applying for Belgian/EEA or Swiss nationality if conditions are met, but individuals should consider consequences (e.g. loss of special tax status if they take up Belgian nationality) before doing so.
  • Preparing documents for family reunification with an EU national if relevant.

 

Authors
Sophie Maes
Partner - Belgium
Claeys & Engels