A bill approving the cooperation agreement between the federal state and the regions coordinating policies on granting the “single permit”, was brought to the Belgian Chamber of Representatives.
The cooperation agreement aims inter alia:
- To set up a single procedure, allows the issuance of a single administrative act, determines right of stay for the purpose of work.
- To enable issuance of residence permits indicate information relating to the access to the labour market, to third-country nationals who have been admitted to Belgium for purposes other than work.
- To set up the ground for further implementation of the Intra-Corporate Transferees Directive, Seasonal Workers Directive and the Directive on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing.
Brief of the single procedure
The single procedure will be initiated by the employer on behalf of the employee (unless application for unlimited work authorisation). Documents to support the application will be lodged with the regional authority. The latter will ascertain whether the application is receivable (I.e. all the documents required are submitted). Within maximum 15 days of the date of receivability, a copy of the application will be communicated by the regional authority to the Immigration Office. The regional authority may decide on the work aspect, before or after communicating the application to the Immigration Office. In the latter case, the application will be processed in parallel by the administrations. Positive decisions will be communicated by the Immigration Office to the employee. Failure to make a decision within a delay of maximum four months of the date of receivability, the authorisations of stay and work will be deemed to be granted, and the single permit issued to the applicant.
Implementation time line
The federal government and the regions will adopt implementing legislations. Single permits will probably begin to be issued before the end of the year.
Insights (potential “traps”)
Determination of the competent regional authority
Pursuant to Article 7, the competent regional authority will be determined considering the territorial connection (i.e. the place where the work will be effectively carried out). Providing that such place cannot be determined, the competent authority will be deemed to be the one having jurisdiction on the place where the employer’s headquarter is located (e.g. if 50% of the work is carried out in the Flanders Region, ,50% in the Walloon Region and the headquarter is located in Brussels, the regional authority in Brussels will be competent to process the application).
Pursuant to Article 8, a regional authority who receives an application for which is not competent, must communicate the application to the competent regional authority (within four days of the reception date). No distinction is made between material error and the authority’s decision “to redirect” the application, based on its own assessment. Not clear whether the decision must be reasoned in the sense of Article 32.
Such a decision, although excluded from the scope of Articles 37 and 38 (provide for the relevant legal remedies). can be appealed to the Council of State (pursuant to Article 14 coordinated laws on the Council of State of 12 January 1973).
It must be observed that on the one hand, such a decision might affect further processing delays (expected to be different, depending on the competent regional authority having jurisdiction on the application), and on the other hand, determines legal uncertainty (e.g. in regard to one of the regions, the expat tax-free allowance cannot be considered as a component of the minimum wage threshold laid down by Article 9.6° Royal Decree of 9 June 1999).
The cooperation agreement provides for the concept of “receivability”. An application can be receivable and complete, receivable but not complete (providing that exceptionally the Immigration Office authorises later provision of documents cannot be initially provided due to reasons overriding the applicant’s will) or not receivable. Failure to provide the missing documents, within a delay of 15 days of the notification date, will result in a non receivability decision. Such a decision can be appealed only to the Council of State.
The decision does not preclude the applicant from lodging a new application. In short, better to lodge the application along with all the documents required.
The certificate of coverage (where relevant), is not referred to in the list of documents provided for by the cooperation agreement (Annex 1). However, the list is non-exhaustive.
The above-mentioned delays (i.e. maximum 15 days to communicate the application to the Immigration Office and, in principle, maximum four months to process the application), are to be considered as of the date which the regional authority notifies the receivability. In addition, the bill provides for the delay the applicant has to provide missing documents (upon notification), however not for the delay the regional authority has to ascertain receivability (as of the reception date).