Work permits: new rules in Flanders as of 1 January 2019 and the ‘Single Permit’

On 7 December 2018, the Flemish government definitively approved a new decree that significantly reforms as of 1 January 2019 the conditions for employing non-EU nationals who are not from the European Economic Area or Switzerland.

In addition, the ‘Single Permit’ will probably also enter into force on 1 January 2019 (although there is no official confirmation yet). The decree will also significantly change the procedure for one to be allowed to work and reside in Belgium.

The decree introduces in Flanders a new economic migration model based on three separate profiles: highly qualified and special profiles, certain medium-skilled profiles (only for shortage professions listed in an updated shortage professions list that is still to be published) and profiles belonging to a residual category who are subject to a labour market test and for whom ‘special economic or social reasons’ must be established.

The key points of the reform are the following:

• an authorisation to work can be granted for a period of 3 years for the most highly qualified and special profiles. At present, this authorisation (until now, the ‘work permit’) must be renewed every year.
• an updated list of shortage professions for medium-skilled profiles will be drawn up every two years by the Flemish Employment Minister. Belgian employers will be able to obtain an authorisation to work for employees with a profession included in the list, provided that the applicable minimum wages are paid.
• the thresholds for highly qualified employees have been slightly increased (e.g., EUR 42,120 gross instead of EUR 40,972 gross per year for highly qualified personnel (amount for 2018)).
• highly qualified personnel under 30 years of age or employed as a nurse will benefit from a reduced threshold (EUR 33,696 gross (amount 2018)).
• the decree amends the rules for employees who are exempt from an authorisation to work: some categories are added, others are modified, or even abolished. As a result, some employees previously exempt will now have to apply for a Single Permit (see below).
• in case of secondment by a foreign employer, the employee will be allowed to perform services for several users in the Flemish Region, provided that the secondment agreement includes the data of all the users.
• the decree also introduces some new categories of highly qualified or special profiles, transposing various European directives. For example, a specific category is introduced for intra-group secondments from a company outside the European Economic Area to a company belonging to the same group located in the Flemish Region. A Single Permit can also be granted under certain conditions for seasonal workers in the catering, agriculture and horticultural sectors. In addition, the existing schemes for trainees and the European Blue Card are significantly adapted.
• new obligations are imposed on employers. For example, the Flemish Government must be informed if the employment is terminated earlier than expected; also, a new authorisation to work must be requested in the event of a significant change in the employment conditions (e.g. change of role, place of work, salary, etc).

The new rules will for the most part enter into force on 1 January 2019 and will apply only in Flanders. Work permits issued under the old regime will remain valid until their expiration.

In addition to these substantive changes in Flanders, other significant procedural changes are on the way as a result of the transposition of the Single Permit directive. As a result, the double procedure and the double authorisation (separate work and residence permits) will no longer apply throughout Belgium. Instead, employers must apply for a single permit through a single procedure – which can take up to 4½ months – to enable the foreign employee to work and reside in Belgium for a period longer than 90 days. The above-mentioned substantive changes in the Flemish Region will be integrated into this. In addition, the type C work permit  will be abolished and replaced by a mention on the residence permit.

These new rules should equally enter into force on 1 January 2019. This is still to be confirmed by the publication of a federal approval law in the Belgian State Gazette. Applications submitted before the entry into force of the new rules will still be processed under the old rules.

We will revert to you early January with a newsletter in which the new rules will be explained in more detail. Keep 17 January 2019 (French) and 21 January (Dutch) free in your diary for a client seminar relating to this topic.

> Action point

Take into account that new rules will apply to the employment of foreign employees in Flanders as of 1 January 2019 and that a new (but longer) procedure for obtaining a ‘Single Permit’ will have to be followed throughout Belgium.