NEWS FROM BELGIUM – IMMIGRATION AND EMPLOYMENT OF THIRD-COUNTRY NATIONALS
Family reunification with “static” Belgian nationals
Applying for family reunification with a non-EU national, a static Belgian national (i.e., who has not exercised the freedom of movement under the Treaty), may bring proof of stable, sufficient and regular means of subsistence by any means, including resources made available to the applicant by a third party.
The third-party can be the non-EU national, family member of the Belgian national.
Analysing the relevant provision of the Aliens Act beyond its wording, the Belgian Council for Alien Law Litigation observed that the legislator intention was to submit family reunification with static Belgian nationals, to the same conditions as family reunification with non-EU nationals.
Subsequently, the Belgian Council for Alien Law Litigation, followed the ECJ ruling in X v Belgische Staat (Judgment of 3 October 2019, C-302/18, EU:C:2019:830).
In C-302/18, the ECJ analysed the concept of resources in the meaning of Article 5(1)(a) Directive 2003/109, with regard to comparable provisions of Directives 2004/38 and 2003/86, and ruled that “ Article 5(1)(a) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents must be interpreted as meaning that the concept of ‘resources’ referred to in that provision does not concern solely the ‘own resources’ of the applicant for long-term resident status, but may also cover the resources made available to that applicant by a third party provided that, in the light of the individual circumstances of the applicant concerned, they are considered to be stable, regular and sufficient.”
Flemish Decree amending the law of 30 April 1999 on the employment of foreign workers
The decree provides for an amendment to Article 12/4 of the Law of 30 April 1999 on the employment of foreign workers, notably regarding chain liability for illegal employment of third-country nationals.
Article 12/4 will cover not only chain liability relating to the control of the employee’s valid residence permit or another authorization of stay, and to the failure to keep evidence available for the competent inspection services (infringements laid down by Article 12/2), but as well:
· chain liability relating to illegal employment (infringement laid down by Article 12/1 §1) and
· chain liability relating to use of illegal self-employed persons (see Article 22.1° Decree of 15 October 2021 on the exercise of independent professional activities by foreign nationals).
The exclusion of liability for illegal employment by a direct subcontractor through a contractual clause, will be submitted to a due diligence test: information must be required by each party in the contracting chain from their direct subcontractor.
The Flemish Government shall determine the specific information and the procedure for requesting it, however about:
· identification and contact details of the direct subcontractor,
· personal data, data about the residence status, and data about the employment of foreign employees of the direct subcontractor, and foreign self-employed used by the latter.
If the undertaking finds that the information to be provided is not available, it must contact its direct contractor, and demand to have it provided.
If the direct subcontractor does not respond to the request to provide the information, the contractor and the intermediary contractor must immediately inform the authority.
There is no obligation to examine the legality of the data transmitted. If the necessary data is present, or – if the data is not present – and the inspection has been notified, the company has exercised due diligence, and can no longer be held liable. However, there is an obligation to verify the validity of the documents required (i.e., valid residence permit, valid professional card etc.).
The information will have to be provided before the start of the cooperation with a direct contractor.
The contractor and the intermediary contractor who meet the conditions, will still be liable if they were previously aware of a situation of illegal employment. To that extent, proof can be brought by social inspectors by all possible means of evidence.
The contractor, the intermediary contractor, and the direct subcontractor shall act as controllers as defined in Article 4(7) of the General Data Protection Regulation.
Article 9 of the Law of 30 April 1999 is replaced.
The possibility for a foreign employee to appeal against a decision to refuse or withdraw a fixed-term authorisation of employment will be removed (only the employer will have the right to appeal against a decision to refuse or withdraw a fixed term authorisation of employment).
As regards authorisations of employment for an indefinite period:
· only the foreign employee will have the right to appeal against a decision to refuse or withdraw such an authorisation,
· the condition of legal residence in Belgium has been removed, however the appeal is neither suspensive, nor does it have the effect of tolerating unlawful stay in Belgium.
Lodging of appeal procedures via Working in Belgium platform will be allowed.
Article 12 §1 of the Law of 30 April 1999 is supplemented to provide for sanctions in case of non-compliance with Article 9 of the Flemish Decree of 7 December 2018.
Article 9 provides for the obligation to notify the labour authority in case of termination of the employment contract, or in case of a significant change to the terms and conditions of employment that may have consequences on the validity of the authorisation of employment.
Amendment of the Decree of 10 December 2010 on private employment services
The same Flemish Decree amends the Decree of 10 December 2010 on private employment services as regards au pairs.
A single regulatory framework will be created for both, European and foreign au pairs:
· the placement of au pairs will be possible exclusively through recognised au pair agencies, will be acting as legal employer, in the capacity of employment agencies
· the host family will be the user who exercises authority over the au pair,
· au pair agencies will be submitted to a specific recognition procedure,
· au pair's services will be deemed professional activities, and the “au pair” activity covered by the definition of employee in the context of private employment services,
· a job description will be added to the list of reference functions in the Joint Committee 323 (JC 323 will determine the relevant applicable terms and conditions of employment).
Tanel Feldman, Immigration Law Associates – Belgium