A third-country national who wishes to come to Belgium to work must submit an application for a single permit. This procedure must be submitted by the employer to the competent regional authority while the foreigner is still in his country of origin.
The Chamber of Representatives voted on 10 November 2022 on the bill amending the law of 15 December 1980 on access to the territory, stay, establishment and removal of foreigners.
Legal basis: European law
This law transposes European Union Directive 2011/98 establishing a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and establishing a common set of rights for third-country workers legally residing in a Member State. This directive states in Article 3:
” 1. This Directive shall apply to:
- (a) third-country nationals who apply to reside in a Member State in order to work there
- (b) third-country nationals who have been admitted to a Member State for purposes other than work in accordance with Union or national law, who are authorised to work and who hold a residence permit in accordance with Regulation (EC) No 1030/2002; and
- c) third-country nationals who have been admitted to a Member State for the purpose of working in accordance with Union or national law.
As for the procedure for submitting the application the Directive provides in Article 4:
” 1. The application for the issue, modification or renewal of the single permit shall be submitted under a single application procedure. Member States shall decide whether the application for a single permit is to be submitted by the third-country national or by his employer. Member States may also decide to allow an application by either of them. If the application is to be made by the third-country national, Member States shall allow the application to be made from a third country or, if national law so provides, in the territory of the Member State in which the third-country national is lawfully present.“
This law also transposes European Union Directive 2021/1883 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, and repealing Council Directive 2009/50/EC.
The bill of November 10, 2022 aims to extend the possibility of applying for a single permit to applicants who are admitted to reside in the territory of the Kingdom for a period of more than 90 days. These are foreigners who have already been admitted to the country but wish to change their status, for example because the conditions have changed.
Principle and novelties
This legislative amendment aims rather to include foreigners already authorized to stay and work in Belgium but whose initial reason for arriving in Belgium was not work.
Article 4 of the bill extends the possibility of applying for a single permit from Belgium and amends article 61/25-2, §2 of the law of 15 December 1980.
A first extension is provided for: “the national of a third country who is admitted or authorized to stay in the territory of the Kingdom for a period of more than ninety days in accordance with Title I, Chapter III, of the Law of December 15, 1980”.
More specifically, this concerns the following categories referred to in Articles 9 to 10ter of the Law of December 15, 1980
- the foreigner who has been authorized by the Minister (or his delegate) to stay more than ninety days in the Kingdom
- a foreigner who has benefited from humanitarian regularization because he was in exceptional circumstances that prevented him from submitting the application in his country of origin (or in the country where he usually resided)
- a foreigner who has been granted medical regularization because he/she is residing in the Kingdom and suffers from an illness that entails a real risk to his/her life or physical integrity or a real risk of inhuman or degrading treatment when there is no adequate treatment in his/her country of origin or in the country where he/she is staying
- a foreigner who has been admitted by right to stay in the Kingdom for more than 90 days and
- certain family members of foreigners who have been allowed to stay in the Kingdom.
Consequently, some foreigners who are dependent on a person authorized to reside on Belgian territory could obtain their own independent residence permit (e.g. in case of separation or divorce with the partner, insufficient income of the person authorized to reside, etc.). Moreover, some foreigners are authorized to stay and not to work, for example the family member of a student who wants to start an economic activity would have to go back to his country of origin to apply. This legislative change would allow him to submit his application in Belgium, without having to return to his country of origin.
A second extension are foreigners who fall under the complementary and derogatory provisions relating to certain categories, in particular family members of a Belgian or European citizen, as referred to in articles 40 and following of the law of 15 December 1980. These are foreigners who have already been authorized to reside in the kingdom for more than ninety days but who wish to change their residence status. They decide to give up their previous residence permit and apply for a single permit.
Concerning the privileged foreigners referred to in the Royal Decree of 30 October 1991 for certain residence permits issued by the FPS Foreign Affairs (diplomats): in principle they cannot submit their application for a single permit from Belgium, unless they prove that they can give up their privileged status. The application for a single permit can therefore be submitted in Belgium if the foreigner can prove beforehand that he/she has surrendered the residence permit obtained as a privileged foreigner. When he returns his special identity card (D card), he will be issued a declaration of arrival and should then be able to submit his application in Belgium.
The work of the “Interior, Security, Migration and Administrative Matters” commission summarizes that the bill aims to address three main situations:
- The foreigner who has been authorized to stay by family reunification with his spouse or legal partner who is a student from a third country.
- Foreigners who depend on their spouse to obtain a residence permit by family reunification and enable them to obtain an autonomous status.
- Foreigners who are in Belgium under a so-called “temporary” status, such as Ukrainians, and allow them to move to an economic migration status.
However, the commission recalls that “it is not intended to introduce the possibility of applying for a single permit from Belgium if the person is not legally residing in Belgium or is in a temporary and precarious residence situation, based on an ongoing residence procedure. The bill under discussion allows Belgium to send a clear signal.”
For the rest, Mr. Rigot is aware that the Secretary of State is not in favor of regularization through work, but it seems to him that this avenue would be a great economic and social opportunity
Procedure
It is important to specify that the permit will only be issued if the conditions for granting the single permit are met.
The applicant who applies for a single permit will have to produce an identity document as well as a medical certificate and proof of a clean criminal record: “Article 25/2, § 1, 1°, of the Royal Decree of October 8, 1981 stipulates that in addition to the B work permit or the professional card or an exemption certificate, the medical certificate and an extract from the criminal record must be presented. It follows that, when this paragraph was introduced, the legislator already intended that these documents could be requested.” “Since not all the documents referred to in paragraph 1 are relevant in all cases where the application is submitted from Belgium, it is provided that the minister or his delegate may also grant a residence permit without the documents referred to in paragraph 1, subparagraph 2, 4°, 5° and 6°. For example, it is not relevant to ask for a medical certificate if the applicant has already stayed in Belgium for more than 90 days.”
Our law firm is eagerly awaiting the outcome of the debates and votes on this bill and will not fail to come back to you once it has been adopted for further explanations.
The law firm Halabi & Associés