1. Country overview
The year 2022 was marked by the asylum reception crisis. For months, the Belgian government has been failing to comply with its legal obligations regarding the reception of asylum-seekers.
Over 5.000 cases have been filed before domestic courts. Countless times, the Belgian government has been condemned for not complying with the law and for leaving asylum-seekers on the streets, without any shelter, health care or material support. However, on the ground of an alleged persistent and structural lack of reception facilities, the federal government and Fedasil, the federal agency responsible for the reception of asylum-seekers, refuse to enforce those decisions. Numerous cases have been brought before the European Court of Human Rights which has ordered interim measures on the basis of Article 39 of the Rules of Court. A final decision has yet to be taken.
Part of the explanation behind the asylum reception crisis is the arrival of Ukrainians who benefit from the temporary protection status. Since February 2022, over 65.000 Ukrainians have arrived in Belgium and have obtained the said status. Based on a Royal Decree of 29 March 2022, Ukrainians who have obtained the temporary protection status are allowed to work without prior work authorization.
Besides the asylum reception crisis and the activation of the temporary protection status, legislative reforms have occurred over the last two years with the aim to, either transpose EU directives, or further increase the regionalisation of the labour immigration policy.
2. Figures
Following the COVID period, immigration to Belgium is on the rise, in particular for labour immigration. Although family immigration remains by far the first reason of entry (43%), labour immigration represented 22% in 2022 with 8.098 long-term visa issued nation-wide.
3. Legislative changes
Jobseeker permit for a year for students and researchers
With some delay not unusual for Belgium, Article 25 of Directive 2016/801 is now transposed. As a result, students (since a law was passed on 11 July 2021) and researchers (since a law of 21 August 2022) are allowed to remain on the territory for a period of 12 months at the end of their studies or research in order to look for a job or to establish a company.
In-country change of status
Another noticeable change occurred with the adoption of a legislative reform of 29 November 2022 which allows in-country change of status for legally residing third country nationals wishing to obtain a single permit to work.
Beforehand, only students and researchers were allowed to apply for a single permit for work purposes from within Belgium. This is now a possibility for all TCNs residing lawfully in Belgium. This possibility is however not offered to immigrants whose stay in Belgium is only provisional for the duration of the administrative or judicial procedure (for instance, asylum-seekers, applicants for family reunification, those who have filed a suspensive appeal before an administrative court,…).
This reform is to be welcomed as it facilitates in-country change of status and makes immigration trajectories more fluid.
4. Business Immigration
Regarding business immigration, the main changes relate to the transposition of the ICT Directive and the adoption of a new regional policy on self-employed TCNs in Flanders.
Self-employees in Flanders
In Flanders, a Decree was adopted on 15 October 2021 to regulate the admission of third-country nationals willing to work in Flanders as self-employed. The rule remains that third-country nationals need to obtain a professional card to work as self-employed but a distinction is now made between those who bring an innovative, economic, cultural or artistic, or sport added value.
In Brussels and in Wallonia, previous rules remain unchanged.
Transposition of ICT Directive
At long last, Belgium finally transposed the 2014 ICT Directive. Following the adoption of a law on 31 July 2020, a Royal Decree of 26 November 2021 finalised the full transposition of the EU Directive. Given the competence of the Regions in the field of labour immigration, transposition measures differ slightly from one Region to another.
5. Significant cases
CJEU, Afrin, C-1/23 PPU, 18 April 2023
In this important case, the Court of Justice ruled that the Belgian legislative and practice imposing, without exception, family members to travel in-person to a diplomatic or consular post to file an application for family reunification is disproportionate and contrary to the objective and the effet utile of the 2003/86 Directive on the right to family reunification.
This case is particularly significant for family members of refugees and beneficiaries of subsidiary protection who sometimes have to travel to a third country through dangerous and unstable areas in order to file an application for family reunification.
Aliens Litigation Council, 5 March 2021, n° 250.489
This administrative Court ruled that the personal audition of asylum-seekers cannot take place through video-conference since it is not foreseen by the law, but also found that this is an ill-suited manner to interview asylum-seekers.
Céline Verbrouck
Altea Lawyer
Certified specialist in foreigners' law and private international family law