The employment of foreign workers
Principle of foreign workers
Foreign workers may work in Belgium provided they have the necessary documents and the legislation is respected. This legislation is strictly regulated and must be meticulously observed.
An important distinction should be made between 2 categories:
- Foreign workers from the EEA (European Economic Area)
- Foreign workers originating from countries outside the EEA, also called third country nationals
Foreign workers from the EEA
Within the EEA, the free movement of employees for citizens of the European Economic Area applies. This means that these workers are exempt from the obligation to obtain a work permit or other documents. They can therefore work in Belgium simply on the basis of their identity card.
The European Economic Area (EEA) includes all EU countries, including Liechtenstein, Norway and Iceland. More specifically, these are the following countries:
Belgium, Bulgaria, Cyprus, Denmark, Germany, Estonia, Finland, France, Greece, Hungary, Ireland, Iceland, Italy, Croatia, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Austria, Poland, Portugal, Romania, Slovenia, Slovakia, Spain, Czech Republic and Sweden
Switzerland is not part of the EEA, but nationals from Switzerland may work in Belgium without restriction. UK nationals are also no longer part of the EEA since the final Brexit on 01/01/2021. Specific rules apply to them. Nationals who already resided and worked in Belgium before this period can apply for an M-card until 31/12/2021 with which they can continue to work. For all other UK nationals, the rules for third country nationals apply.
Foreign workers from other countries (third country nationals)
Different rules apply to workers from countries that are not part of the EEA. These rules must be strictly applied. Moreover, the rules are not always the same. Depending on the time of the application for the permit and the employee's right of residence, they may differ.
Applications made before 1 January 2019
For applications made before 1 January 2019, the former rules continue to apply. As a transitional measure, these labour cards remain valid until their expiry date.
Work permit A: Employees in possession of a work permit A may carry out any job with any employer for an unlimited period. The A work permit will eventually be abolished and replaced by a single permit of unlimited duration.
Work permit B: Employees holding a work permit B are allowed to perform a specific job for a specific employer. The type B work permit remains applicablefor employment of less than 90 days and for cross-border workers and au pairs. Some specific conditions still have to be taken into account, such as the limit of 20 hours per week for students during the school year.
Work permit C: Workers holding a work permit C may carry out any type of work for a fixed period (maximum 12 months). This card will beabolished. Workers who used to be eligible for a type C work permit may now work on the basis of their temporary residence permit (asylum seekers, family reunification workers, etc.). They will receive a new identity card stating "access to employment: unrestricted".
Workers with an electronic foreigner's card
Workers with an unrestricted right of residence in Belgium are exempt from having to obtain a work permit. This group of employees is allowed to work in Belgium on the basis of their electronic foreigner card. More specifically, this concerns employees with an electronic foreigner card B, C, D, F or F+.
Workers with an electronic foreigner card H (the blue card) do not have to hold a separate work permit either. This card is both a residence permit and a work permit and is issued to highly skilled workers.
Foreigners with an electronic foreigner card A have a right of residence of limited duration and are therefore not allowed to work without a work permit or combined permit.
The electronic cards will continue to exist after January 2019, whether or not in an adapted form. If applicable, access to the labour market is added: limited, unlimited or no.
Applications submitted after 1 January 2019 (single permit or combined permit)
Since 1 January 2019 it is possible to apply for a single permit. This allows one to follow one application procedure, which gives both permission to stay and access to work . In concrete terms, this means that work permits A and C are no longer issued separately (except in certain cases).
However, a distinction must be made between 2 situations:
- A "short stay" where the employee will stay and work in Belgium for a maximum of 90 days. The employee must apply for a type B work permit. The stay is limited to the duration of the employment.
- A "long stay " where the employee will stay and work in Belgium for more than 90 days. A combined permit can be applied for.
The combined permit can be applied for at the regional office and is issued by the Immigration Department. The maximum duration of the procedure is 120 days, but usually it will take less time (4 to 5 weeks). There is also a faster procedure for renewals. However, one has to take into account that the application for renewal or modification of the single permit must be submitted at least two months before the expiry date. Moreover, the application for the permit remains a complex procedure since several actors are involved. On the one hand there is the competent region for the admission to the labour market (regional), on the other hand there is the Immigration Department (Dienst Vreemdelingenzaken - DVZ) which is responsible for the admission to reside (federal).
The permit always mentions "access to the labour market". These indications only relate to access to the labour market and have no effect on the residence status or the duration of residence. Three indications are possible:
- "Limited": limited in duration and limited for 1 employer
- "Unlimited': unlimited in duration and valid for all employers
- "No": no permission to work
As an employer it is also advisable to remain vigilant during the entire period of employment. With the introduction of the single permit it is still possible that an employee meets all the conditions at the beginning of the employment (valid single permit), but that this situation changes in the course of the employment. The employer is still not automatically informed of this.
Decision
Before hiring a foreign worker, it is important to carefully analyse the situation of the foreign worker and to comply with the administrative procedures. Always consult the administrative authorities before taking any further steps. Infringements of the employment of foreign workers are severely sanctioned. A foreign worker legally residing in Belgium is not always allowed to work in Belgium.
The introduction of the single permit is a major step forward in the administrative simplification of work permits. However, practice shows that the procedure has become more complex than originally thought and that there are still many ambiguities. Caution and vigilance are therefore still required during the entire period of employment.
Sources and information: Federgon, www.werk.be, www.agii.be
Axis Advice is based on up-to-date data and reliable sources. However, the articles are provided for information purposes and do not constitute binding legal advice. Although Axis makes every effort to keep the content of this article correct and up-to-date, no rights can be derived from it.
