Assigning third-country nationals to work abroad might alter their ability to enforce further rights

 

Assigning third-country nationals to work abroad, might undermine their right to permanent residence and nationality.

During the first five years of their presence in Belgium, third-country nationals, locally employed, are authorized to temporary stay (holders of residence permits type A or H-EU Blue Card) or to unlimited stay (holders of residence permits type B or F-dependents of EU nationals).

Upon completion of five years of lawful and uninterrupted stay, they are in principle eligible for permanent residence and where the other criteria are met for Belgian nationality.

To enforce such rights, the national legislation provides on the one hand for the concept of “temporary absence” and on the other hand for periods of absence deemed not to interrupt the continuity of stay.

The concept of “temporary absence”

The Aliens Act (Law of 15 December 1980), provides for a right of return to Belgium over a period of one year, or longer under the conditions laid down by Royal Decree.

The Royal Decree of 8 October 1981, lays down the rules binding on foreign nationals, holding a valid residence permit and intending to leave Belgium for a continuous period exceeds three months.

Such absence must be reported to the local administration before departure (Annex 18). The continuity of stay is granted where upon return the residence permit is valid and the alien reports to the local administration within maximum fifteen days from the date of return.

Where the intended period of absence exceeds twelve months, before departure, the alien must bring proof of maintaining the centre of his interests in Belgium.

To grant validity upon return, residence permits may be renewed before departure.

The Royal Decree of 16 July 1992 (amended by Royal Decree of 9 March 2017), provides for the concept of temporary absence. It must be noted that any Belgian resident is bound by its provisions.

An absence is deemed to be temporary where:

  • The person concerned has and maintains a main residence in Belgium (i.e. an abode owned/rented).
  • The person concerned maintains “sufficient interest” to demonstrate that such residence can be re-occupied at any moment. With simple words, the residence must be sufficiently furnished, equipped and unoccupied, either occupied by members of the household, at least some of them, registered at the address at latest immediately before the absence occurs.
  • The temporary absence cannot exceed one year and can be renewed only one time, for the same period. Different exceptions are provided, inter alia the absence for professional reasons, notably the deployment in Belgium or to another country.

The Royal Decree provides for the right to report to the local administration any absence exceeds three months. It is advisable to enforce such right. However, to enforce the exemption provided for professional reasons, the resident must provide relevant evidences and that is practically possible only enforcing the right to declare the absence.

Failure to declare the absence may result in an ex-officio cancellation of registration.

Practical modalities to report the absence will be laid down by Royal Decree.

Permanent residence

Third-country nationals, locally employed are eligible for EU long term resident status (residence permit type D), equivalent to permanent residence.

As laid down by the Aliens Act, the following periods of absence are deemed not to interrupt the continuity of stay:

  • Maximum six consecutive months, and not exceeding ten months in aggregate over the period of five years concerned.
  • Maximum twelve consecutive months, and not exceeding eighteen months in aggregate over the period of five years concerned, for EU Blue Card holders.

More favourable conditions are provided for third-country nationals, family members of EU nationals.

Declaration of citizenship

it must be first considered that to lodge the declaration of citizenship, the applicant must be authorized to unlimited stay. Neither the residence permit type H (EU Blue Card) and nor the type A determines such right, and as a consequence, an application for a residence permit type D must be first lodged.

Third-country nationals holding a residence permit type B or F, may lodge “directly” the declaration for citizenship (i.e. upon completion of five years of lawful and uninterrupted stay).

As laid down by the Belgian Nationality Code, the period of five years immediately preceding the declaration, is deemed not to be interrupted by temporary absences of maximum six consecutive months and not exceeding twelve months in aggregate over the period of five years concerned.

Conclusion

To grant the continuity of stay in the sense of the Aliens Act, Royal Decree of 16 July 1992 as amended and the Belgian Nationality Code:

  • The main residence must be genuinely maintained in Belgium.
  • Periods of absence exceeding three consecutive months must be reported to the local administration (currently Annex 18 only).
  • The length of permitted absence must be assessed considering the “five years rule” (i.e. five years of lawful and uninterrupted stay immediately preceding the application for permanent residency and/or declaration of citizenship) and the most restrictive law provisions applying in context (e.g. a EU Blue Card holder absent eighteen months in aggregate over the period of five years immediately preceding the application for permanent residency, will be deprived of the right to lodge the citizenship declaration immediately after obtaining the residence permit type D).

 

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