Brexit - Employment of British nationals after 31 December 2020

The law of 16 December 2020 concerning the beneficiaries of the Withdrawal Agreement was published yesterday in the Belgian State Gazette. This law concerns British nationals and their family members who have exercised their right of free movement of persons before 31 December 2020, as well as certain family members who will join their British family members after 31 December 2020.

After the transition period, British nationals will be regarded as third-country nationals. The rules relating to EU citizens will therefore no longer apply to them. From 1 January 2021 onwards, it will therefore be necessary to apply for a work permit or “single permit” for British nationals employed in Belgium, unless an exemption applies.

However, this will not be necessary for all British employees.

The law on the beneficiaries of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community is intended to safeguard the acquired rights of residence of British nationals and their family members who have exercised their right of free movement before the end of the transition period. This Act was published yesterday in the Belgian State Gazette.

British nationals and their family members who reside in Belgium or work as frontier workers by 31 December 2020 at the latest may retain their right of residence and right to work in Belgium if they apply with their municipality by 31 December 2021 at the latest to obtain the status of beneficiary of the Withdrawal Agreement.  

More particularly, this concerns the following persons:

• Holders of an E(+) or F(+) card: upon presentation of their current card, an extract from the criminal record and a valid identity card or passport;
• Frontier workers in possession of an Annex 15: upon presentation of their current Annex 15, an extract from the criminal record and a valid identity card or passport;
• Persons who can prove that they have exercised their right of free movement by 31 December 2020 at the latest, but who do not hold an E(+) card, F(+) card or Annex 15: provided that they submit the necessary documents (e.g. Annex 19bis or an employment contract for employees), they may also qualify as beneficiaries;
• Certain family members arriving in Belgium after 31 December 2020: upon presentation of certain documents, they can still obtain the status of beneficiary up to 3 months after their arrival.

If the application is approved, beneficiaries of the Withdrawal Agreement will receive an electronic residence card (M-card) or an electronic local border traffic card (N-card). On the basis of these cards, they can continue to work in Belgium without limitation. Employers will therefore not have to apply for a single permit or work permit for British nationals who hold an M- or N-card. During the procedure, British nationals will continue to be able to reside and work in Belgium on the basis of their current residence documents. However, the validity of these documents will cease on 31 March 2022 at the latest.

Action point

From 1 January 2021 onwards, it will be important to request the residence documents of British nationals employed in Belgium and to keep a copy in the personnel file. If the employee qualifies for the status of beneficiary of the Withdrawal Agreement, he or she must apply for an M-card (residence card) or N-card (frontier worker) by 31 December 2021 at the latest. If the employee is not a beneficiary of the Withdrawal Agreement, he or she will have to apply for a work permit or “single permit”, unless an exemption applies.