Business immigration: new substantive rules in the Brussels-Capital Region

At the beginning of this year, the regulatory framework for the employment of foreign workers was radically changed in terms of procedure. The Flemish Region was the first to introduce substantive modifications to the framework (see our newsletter of 16 January 2019 regarding both aspects).

With the Decree of 16 May 2019 of the Government of the Brussels-Capital Region published on 4 June in the Belgian State Gazette, the Brussels-Capital Region continues the substantial reform of the (increasingly heterogeneous) Belgian business immigration landscape.

Scope of application
First of all, it should be noted that the following modifications will only apply where the Brussels-Capital Region is competent for processing applications for authorisation to work. The substantive rules vary from region to region.

Substantial modifications
Unlike the Flemish Region, the Brussels-Capital Region has not introduced a completely new business immigration model but rather has adapted the existing regulatory framework. The main points can be summarised as follows:

• An authorisation to work may be granted for a maximum period of three years for specific categories of foreign workers (e.g. highly qualified personnel, leading personnel, researchers, etc). Unlike the Flemish Region, the employer must on its own initiative submit certain documents each year (i.e. payslips, individual accounts, proof of Limosa notification, social security certificate).

• The grounds for refusal and withdrawal are extended. For example, an application can be refused or a permit withdrawn because of the absence of economic or social activities or because of definitive sanctions imposed in the past concerning the employment of foreign workers.

• The (method of calculating the) salary thresholds which must be observed for certain categories of workers are not the same as those in Flanders. Nor is there any provision for a lower wage limit for highly qualified personnel for employees younger than 30 or for nurses.

• Unlike in Flanders, there is no specific regulation for certain medium-skilled profiles who exercise a shortage profession.

• In order to implement a number of European directives, certain new “European” categories of highly educated or special profiles have been introduced:
  - intra-corporate transferees ( “ICT” i.e. secondment of a company outside the EEA to a company of the same group in the Brussels-Capital Region) but only for managers, specialists and trainees with six months’ seniority, unlike in the Flemish Region where the required seniority is three months. The salary thresholds also differ;
  - seasonal workers but only for the agricultural sector, unlike in the Flemish Region where this category also includes the catering sector;
  - researchers who come to Belgium for research at an accredited research institute established in the Brussels-Capital Region;
  - trainees: the maximum duration is six months, unlike in the Flemish Region where this maximum duration can be renewed once.
  - volunteers in the framework of the European Voluntary Service.

Entry into force
The new regulation will partially enter into force retroactively on 1 June 2019. The authorisations obtained or applied for before the entry into force will remain valid and will be dealt with according to the previously applicable rules.

The rules relating to the “European” categories will only enter into force after the executive cooperation agreement of 6 December 2018 becomes effective (with the exception to a very limited extent of the  ICT category).

> Key message

As of 1 June 2019, certain new substantive rules will apply in the Brussels-Capital Region for the employment of foreign workers.