Immigration during Covid-19

Background

Following the coronavirus outbreak, the Belgian government adopted a series of lockdown measures, including the closure of some businesses or imposed strict sanitary measures onto others in relation with the work place or duties. A clear distinction is made between essential and non-essential businesses. Essential businesses include inter alia food shops, pharmacies and gas stations. In those businesses, the employer must enable workers to work from home as much as possible. If not, measures of social distancing must be complied with. Non-essential businesses with workers' role which don't allow working from home and whose employer can't ensure compliance with social distancing, must close.

The temporary closure of many businesses or a drastic reduction in their activities has left workers fully or partly jobless as their employer, client or supplier fails to provide them with (sufficient) work, with more than a million Belgians who are temporarily laid-off. The temporary unemployment regime due to force majeure (temporary lay-offs) has now been extended until 31 May 2020.
The COVID-19 pandemic has impacted all businesses in one way or another; however, for businesses who employ international workers there are many additional burdens and risks, many of which will be overlooked or simply not apparent.

Here is an overview of the mitigation actions adopted by the Belgian Federal and Regional governments as a short-term response to the COVID-19 crisis and their impact on businesses with an international staff.

Schengen entry ban from 17 March 2020

Following the temporary Schengen entry ban announced on 17 March 2020 by the European Union (in place for 30 days) to limit transmission of COVID-19, the European Commission issued on 30 March 2020 recommendations for EU countries to adopt concerning the Schengen travel ban.

Next to transit arrangements for the repatriation of EU citizens and their family members stranded in third countries, recommendations include:

• the introduction of temporary travel restriction applying to all non-essential travel from third countries to the EU+ area;
• continue offering minimum visa service in consulates for processing visa applications for those exempt from the travel ban; and
• dealing with overstay caused by travel restrictions, including for visa-waived third country nationals.

On 8 April 2020, the Commission invited Schengen Member States and Associated States to prolong their temporary restriction on non-essential travel to the EU until 15 May 2020.

Temporary travel restriction

On the proposal from the Commission, the external borders of Belgium are temporarily closed to third-country nationals making non-essential travels. Non-essential travel to and from Belgium via internal borders is also temporarily prohibited.

Non-essential travel covers travels for tourism, spare time, shopping, buying fuel, visiting an acquaintance or a family member living abroad are deemed non-essential.

Essential travels remain authorised from and to Belgium. Business trips, co-parenting regulations, providing assistance to a vulnerable person living abroad, attending a family funeral, picking up a family member at the airport in one of our neighbouring countries are, in particular, regarded as essential travels.

Persons who have to cross Belgian borders because of essential travel are strongly advised to keep available a document justifying their purpose of travel when seeking entry into Belgium.

Impact on visas

In execution of the current travel restrictions in coordination with the other EU countries, Belgian authorities have closed temporarily their external borders to third-country nationals making non-essential travels.

This means that, for the time being and until further notice, Belgian embassies and consulates no longer receive new visa applications or issue visas, except for visa for travels in exceptional cases (for essential/emergency travel purposes, that is health sector or related to the crisis). In most countries, the Visa Application Centres are also closed.

The processing of visa applications already submitted by the Foreigners Office continues normally. Upon a positive granting decision, the visa will however not be issued immediately, except for applicants with an essential function or an essential need.
If the visa was requested for a short stay, the visa may be issued after the situation has been normalised, provided that the applicant still meets the entry conditions.

Finally, people with a visa already granted are strongly advised to postpone any non-essential travel and to travel when the situation is normalized. If the period of validity of the visa issued for the postponed trip is insufficient to cover the duration of the new trip, a new visa may be requested on presentation of additional documents proving that new arrangements for the new trip have been made (new invitation).

Impact on work permits

New applications - All three regional authorities are still processing new applications for work permit, or their renewal, but are currently working behind closed doors. It means that it's now possible to submit applications electronically, without the need to send the originals in parallel. However, each regional authorities require for the originals to be kept available in the event of any subsequent checks.
Some delays should be expected in the process. In any case, given the official notification of the government regarding the visa delivery (see above), any arrival to Belgium should be postponed until further notice, unless for essential services.

Impact of temporary lay-off on salary thresholds - For some categories of non-EEA migrants, the eligibility for a work permit is conditioned upon the compliance with an annual gross salary threshold, whether these migrants are subject to Belgian social security or are on temporary posting in Belgium. Highly skilled migrants (for example, Single permit), migrants under an ICT permit, the EU Blue Card or managers and/or directors fall into this salary requirement.
The automatic access to the temporary unemployment scheme for force majeure until 31 May 2020 granted by the Belgian government allows for workers to be temporarily laid off or to alternate full days of unemployment and days of work. Only workers subject to Belgian social security are eligible under this scheme. Posted workers occupied in Belgium for a determined period who remain subject to their home country's social security are out of scope.
Being temporarily laid-off reduces the amount of the concerned workers' annual gross salary. The regional labour authorities responsible for granting and issuing of work permits have released guidance in relation to this question :

• The Brussels-Capital Region announced that they will be flexible with regard to the salary threshold due to the current crisis. Therefore, upon submitting any new request or renewal, they will take this particular situation into account when analysing the threshold requirement. For this purpose, the authorities may request the employer to provide clear justification at the time of the application for renewal or the annual review. The addition of certain supporting documents such as certificates from the Unemployment Office (ONEm/RVA) is recommended.
• The Flemish Region has announced that a period of temporary unemployment is not taken into account in the calculation of the wage threshold, regardless of whether or not the person concerned receives an allowance from the ONEm/RVA under the temporary unemployment scheme. In other words, for salary thresholds assessment purposes, the gross annual salary will be reduced in proportion to the period of unemployment concerned. The Region will calculated the yearly salary on a prorated basis, only considering periods of paid work.
• The Walloon Region has announced that periods of temporary unemployment during the period from 1 March 2020 to 31 May 2020 (could be extended) will not be taken into account for the calculation of salary thresholds provided that an ONEm/RVA certificate is added to the individual accounts for 2020.

Dealing with overstay in Belgium caused by travel restriction

The Foreigners Office (immigration authorities) confirmed that a third-country national who is prevented from leaving Belgium for reasons of force majeure (quarantine, flight cancellation, border closure, etc.) may request authorisation to extend his or her stay in Belgium. In order to reduce travel and direct contacts, this request can be sent by email to the municipal administration of his place of residence. For urgent cases, the application can be sent directly to the Foreigners Office, by e-mail (kv.opvolging@ibz.fgov.be in case of residence in a Dutch-speaking municipality or cs.suivi@ibz.fgov.be in case of residence in a French-speaking municipality).

The applicant is required to add to the usual application file: a letter explaining why he/she cannot leave the Schengen area on the planned, along with documents confirming the impediment to leave the territory; a travel health insurance valid for the duration of the desired extension; and his/her address of residence in Belgium.

It is important that the application is submitted as soon as possible. Failure to submit such an application may lead to penalties in the event of the third-country national's subsequent return to the Schengen area. In that regard, however, the Commission encourages EU countries to be accommodating and to take into account difficult circumstances when dealing with overstaying. Among its recommendations on 30 March 2020, the Commission urged EU countries to waive sanctions or penalties related to overstays and should disregard current overstays for future visa or residence applications.

Occupation while on overstay – All three regional Labour authorities have announced that they are taking measures to ensure that third-country nationals who can't temporarily leave Belgium for reasons of force majeure can still be employed.

The Brussels-Capital Region announced that, if all legal conditions are met and the conditions of employment of a foreign worker are respected, the employer could apply for an work permit B for a period of maximum 90 days, based on the short stay of the worker. The duration of the employment authorisation/work permit is linked to the validity of the extended residence permit, with a maximum of 90 days.

The Flemish Region announced that for a temporary extension of residence and work permit for persons who cannot return to their country of origin:

• for a maximum of three months (work permit B) – an extension of the residence permit may be requested. With regard to the work authorisation/work permit B, the employer must submit an application for an employment authorisation/work permit B together with the approval for the extension of residence. The duration of the employment authorisation/work permit B is directly linked to the validity of the extended residence permit, and this work authorisation/work permit B cannot be extended;
• for more than three months (Single permit) – an extension of the Single permit may be requested by anyone staying in Belgium for more than three months. This request for an extension must be submitted no later than two months before the expiry of the current permit. The authorities will then send the work permit to the worker, who will be able to start working on the basis of this permit. The worker must present himself to the municipality with said authorisation to receive an Annex 49 with the indication "work permit: limited" pending the final decision on the Single permit;

The Walloon Region has also announced the granting of an occupation permit/work permit B if the worker's stay is temporarily extended due to force majeure. This work permit B will be granted for the duration of the worker's temporary stay.

Impact on cross-border workers

A cross border worker is any person who has to cross borders to get to work and pursue their professional  activity as an employed or self-employed person in an EU Member State.

EU Member States have introduced several official certificates to demonstrate the need for border workers to cross borders to work.

Belgium – Since 18 March  2020, Belgian authorities have prohibited all non-essential travels until April 19, 2020 (likely to be extended until 15 May  2020 as per the EU Commission recommendation) and are controlling the borders. Although not mandatory, cross-border workers are encouraged upon leaving the Belgian territory, to carry with them a certificate justifying the essential nature of the travel. See the template certificate issued by the Labour Ministry for this purpose.

This certificate allows the employer to demonstrate the employment relationship with the employee. It serves as proof for the need to cross the border in the context of the COVID-19 situation. It only needs to be completed once and remains valid for the duration of the COVID-19 crisis.

Upon crossing the Belgian-Dutch borders - The border between the Netherlands and Belgium is strictly monitored: only essential travels are authorised.

At present, the Dutch and Belgian authorities have implemented a sticker system allowing professions in critical sectors to be given priority when crossing the border (including medical roles, COVID-19 crisis management and the food industry). This is to facilitate and speed up border crossing for those professionals.

The sticker must be stamped with the employer's stamp to be valid. It shall justify the essential nature of the border crossing and certify that the criteria defining the vital sectors and crucial professions listed in the relevant Ministerial Orders.

Upon crossing the Belgian-Luxembourg borders - A Luxembourg certificate must be completed by the employer and the employee upon crossing the borders. Moreover, it is recommended to the worker to hold the Belgian certificate proving the need to cross the borders as Belgian authorities may still refuse to let him cross the border if his professional displacement is not regarded as essential.

Upon crossing the Belgian-German borders - Germany has not implemented strict border control. No official certificate is thus required to cross the border between Germany and Belgium. However, it is recommended to hold the Belgian certificate above proving the need to cross the borders as Belgian authorities may still refuse to let the worker cross the border if his professional displacement is not regarded as essential.

Upon crossing the Belgian-French borders - France has introduced a strict lockdown until 11 May 2020. As a consequence, any worker crossing the border between France and Belgium for work purposes must hold the official mandatory certificate. The employer must also fill in a certificate to justify the essential nature of the travel.

Moreover, frontier workers pursuing an activity in Belgium while residing in France (to which he returns as a rule daily or at least once a week) must also complete this specific form.

Impact of teleworking

Since 13 March  2020, teleworking from home is mandatory in all non-essential businesses, regardless of size, for all staff with the appropriate role. The principle of compulsory teleworking does not apply to essential businesses and services (that is, medical care institutions, rescue services, postal services, fuel services, etc.). The essential businesses and services are, however, obliged to implement, as far as possible, the system of teleworking at home and the rules of social distancing.

Due to the recent call for teleworking in Belgium to fight against the spread of COVID-19, many employees have been working from home since 16 March  2020. This measure could potentially alter the applicable social security scheme under the applicable EU Regulation as the employees do provisionally perform 100% of their activities in their country of residence.

Applicable social security legislation - Indeed, under the Regulation (EC) no. 883/2004 on the coordination of social security systems, a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State. In a nutshell, the employee who normally pursues an activity in two or more Member States shall be subject to (a) the social security of his Member State of residence if he pursues a substantial part of his activity (at least 25% of his time or professional income) in that Member State, or to (b) the social security of the Member State in which the registered office or place of business of the undertaking or employer employing him is situated, if he does not pursue a substantial part of his activities in the Member State of residence.

Belgian authorities have decided that the period of teleworking under the COVID-19 measures performed by frontier workers or by workers on temporary posting in Belgium, will have no impact on the applicable social security legislation of the country in which they work in normal times.

The neutralisation of said specific periods of teleworking as a result of COVID-19 remains applicable as long as the governmental measures to combat the spread of COVID-19 remain in force (until 3 May 2020 included for the time being).

Enforcement of these measures does not require any action on the part of the employer or the employee. The A1 certificates already issued remain valid and it is not necessary to inform the National Social Security Office of the modified way of working or to request an exceptional agreement on the basis of article 16.1 of Regulation no. 883/2004.

Employees and self-employed persons who are normally subject to the social security scheme of another Member State than Belgium but which, as a result of the measures taken to contain the COVID-19 in Belgium, currently work from home, are exempted from the Limosa declaration obligation. If, on the other hand, a declaration has already been drawn up but the place of work does not correspond to the current teleworking location, the Limosa declaration need not to be adapted. This regulation strictly applies to telework due to COVID-19 measures and for as long as the emergency measures taken by the Federal State to limit the spread of COVID-19 are in force (provisionally until 3 May 2020).