Free movement of workers
As a result of the Brexit deal with the Trade Cooperation Agreement (hereinafter “TCA”), there is no more free movement of people between the UK and the EU, meaning UK nationals no longer have freedom to work, study, start a business or live in the EU and are considered henceforth as third-country nationals.
The UK has chosen to refuse to include a chapter on mobility in the TCA. This means that business travel between the EU and the UK will no longer be as easy as it used to be. In this checklist we overview the Brexit consequences with a specific focus on the situations of the UK nationals in Belgium and the Belgian nationals in the UK.
Is a visa required ?
Yes. In principle, the visa has become mandatory to UK nationals travelling in the EU and to EU nationals in the UK.
However, an exception exists regarding the short-term visits of up to 90 days within 180-day period. This exception applies on both side of the Channel, with the understanding that this visa waiver reciprocity is conditional on the UK continuing to provide for equal visa-free travel for short-term visits for EU citizens of all EU Member States, without discrimination between EU nationals.
Is a working permit required ?
The answer depends on whether the UK/Belgian employee lived and worked in Belgium/the UK before 31 December 2020 or was established on or after 1 January 2021.
Concerning UK employees in Belgium:
Yes. For UK employees who were not living and working in Belgium by 31 December 2020, the same immigration requirements as for third-country nationals will be applicable. This means that even if these UK employees will not need a business visa (see above regarding the visa waiver for short term visits of up to 90 days within 180-day period), they might nonetheless need to apply after 31 December 2020 for a specific work permit depending on the duration of their stay:
- For short-term stay up to 90 days, UK business visitors will need a work permit B unless they are in Belgium for meetings “in closed circle” for a maximum of 20 subsequent calendar days per meeting and 60 days in total per year.
- For longer stay (more than 90 days), the employer will need to apply for a Single Permit for UK nationals to reside and work as a salaried employee.
UK self-employed workers will need to apply for a residence permit and a professional card.
Application for a permission to work/stay in Belgium must generally be filled in with the Region where the UK workers consider to work (Brussels, Flanders and Wallonia).
No. As an exception to the rule above, UK nationals already residing and working in Belgium before 31 December 2020 do not need to apply for a work permit, provided their cross-border situation with the EU continues without interruption. The Belgian legislator has adopted a special Brexit Act which provides for the “Beneficiaries of the Withdrawal Agreement status” fixing the modalities applicable to these UK nationals and their family members (see below).
Concerning Belgian employees in the UK:
Yes. For Belgian employees who were not living and working in the UK by 31 December 2020, UK has adopted a UK’s points-based immigration system that prioritizes skills and talent over where a person comes from.
Belgian nationals wishing to work in the EU from 1 January 2021 will thus have to meet the relevant criteria and score the number of points required for the visa they are applying for (namely the relevant minimum salary threshold, the required skill level and a sufficient level of English at a level of B2).
No. Belgian nationals who were resident in the UK on or before 31 December 2020 will also benefit from the Withdrawal Agreement. This means they will not be subject to the points-based immigration system.
They can benefit from this specific status by applying for the EU Settlement Scheme granting the right to continue living and working in the UK after 30 June 2021. Belgian nationals will then be given either the “settled status” or the “pre-settled status” depending on the duration of their stay in the UK when applying for the EU Settlement Scheme. By applying successfully Belgian nationals will be able to work in the UK.
Is a working permit also required for frontier workers ?
Yes. UK frontier workers starting working in Belgium after 31 December 2021 will need to have a work permit B requested by the employer. In addition, UK frontier workers will also need the Annex 15 from the commune where they carry out their activities. Unlike the non-frontier workers, they will not have to apply for a Single Permit if they work more than 90 days in Belgium.
No. These work permit provisions regarding third-country nationals do not apply to UK frontier workers who were already working in Belgium before 31 December 2020. They will also benefit from the “Withdrawal Agreement status” under the Belgian Brexit Act (see below).
In the UK
Yes. A Belgian frontier worker starting working in the UK after 31 December 2020 will also need to apply for a Frontier Worker permit from 1 July 2021 (and using a passport or nationality card until then). In addition, a UK visa will also be required from 1 July 2021.
The Belgian frontier workers already working before or on 31 December 2020 must apply for a Frontier Worker permit (although they are eligible thanks to the Withdrawal Agreement) but do not need to apply for a visa.
New provisions regarding entry and temporary stay of natural persons for business purposes under the TCA: what impact on the work permits ?
In addition, the TCA provides for specific provisions regarding the entry and temporary stay of natural persons for business purposes. These provisions relate to different categories of workers which are allowed under specific conditions to work and stay in the UK/EU. The lengths of stay are set for a period depending on these categories and go up to 3 years for managers and specialists, up to 1 year for trainee employees and up to 90 days within any six-month period for business visitors.
Although the TCA seems to waive any working permit requirement for (i) business visitors for establishing purposes and (ii) short-term business visitors, the interpretation of these provisions are not clear yet. Indeed, the TCA also provides that each Party shall make publicly available information on relevant measures that pertain to the entry and temporary stay of natural persons, including categories of visa, permits or any similar type of authorization. Further information will therefore have to follow in the future in order to apply these provisions.
Who has to apply for the working permit in Belgium ?
Under Belgian law, this is a joint application from both employer and employee.
The adoption of a “Brexit Act”
Belgium has enacted the law of 16 December 2020 (published on 23 December 2020) on the beneficiaries of the Withdrawal Agreement. This law is aimed at securing the rights of UK nationals who were residing and working in Belgium before 1 January 2021 by giving them the specific status of “Beneficiaries of the Withdrawal Agreement”. These UK nationals will benefit from the further application of the EU law, meaning they remain within the framework of the free movement of persons as long as their cross-border situation continues without interruption.
In order to benefit from this status, UK nationals will have to update their current EU documents:
- UK employees living and working in Belgium who have a residence permits E(+) card or F(+) will have to exchange it for a M-card.
- Frontier workers will have to exchange their Annex 15 for a N-card.
Application must be done by 31 December 2021 at the latest and the UK nationals concerned will have to submit the following documents:
- Identity card or a valid passport;
- Current European residence card;
- F(+) card for non-EU family members;
- Annex 15 for frontier workers ;
- Criminal record (maximum six months old).
UK employees living and working in Belgium will be informed individually by their commune of the procedure for applying for their new residence card.
Social security rights and benefits
As expected, and given the results of these negotiations, the UK no longer benefits from the free movement of persons. In fact, many feared that a lack of agreement on social security coordination would create enormous difficulties for UK employers sending their workers to the EU. As it turns out, the Agreement incorporates a protocol on social security coordination (“Protocol”) that sets out a number of social security coordination measures aimed at protecting the social security entitlements of EU citizens and UK nationals after 1 January 2021.
In a nutshell, the Protocol:
- applies to persons legally residing in an EU Member State or the UK, as well as to the members of their family and survivors, facing a cross-border situation;
- covers a wide range of benefits, including sickness benefits, maternity and paternity benefits, invalidity benefits, old-age and survivor’s benefits, unemployment benefits and pre-retirement benefits (depending on each EU Member State, certain benefits in cash as listed in the annexes to the Protocol will not be subject to the coordination measures);
- confirms to some extent the four principles already enshrined in EU regulations:
- the general rule remains that social security contributions are due in the country in which the employee is working, meaning workers are subject to one piece of legislation at a time (principle of unique payment);
- workers should have the same rights and obligations as nationals of the country in which they are insured (principle of equal treatment and non-discrimination);
- to some extent, previous periods of insurance, work or residence in other countries are taken into account (principle of aggregation of periods); and
- under specific conditions and depending on the kind of benefits, workers are entitled to benefits in one country even if they live in another country (principle of exportability);
- provides for specific rules for multi-state workers working in the UK and one or more EU countries; and
- provides for specific rules for detached workers confirming, under certain conditions, the payment of social security contributions only in the employer’s country, even if the employee is temporarily working in another country. EU Member States must agree to these detached worker rules by 1 February 2021 for them to continue to apply, otherwise all social security contributions (employer/employee) will be payable in the country in which the employee is working. According to information from the International Relations Department of the National Social Security Office, Belgium has agreed to the detached worker rules by deciding, under the terms of the Protocol, to be considered as a “Category A” country.
The Protocol therefore applies outside the framework of the free movement of persons and will cease to apply 15 years after the entry into force of the Agreement.
However, for employment relationships involving an EU Member State and the UK that existed before 31 December 2020, UK employees in Belgium will have the “Beneficiaries of the Withdrawal Agreement” status, meaning that they will benefit from EU regulations on social security coordination as long as the cross-border situation continues without interruption. There will therefore be two regimes in place simultaneously, depending on whether the cross-border situation existed before 31 December 2020 or was established on or after 1 January 2021.
European Works Councils
Are the rights of UK representatives in European Works Councils (“EWCs”) safeguarded after Brexit?
The TCA does not include no deal with regard to the EWCs. This means that the EU rules in the field of information and consultation of workers at transnational level will no longer apply to the UK.
Although an already existing works council based in the UK could continue to operate in accordance with the national law, it will no longer be considered as an EWC within the EU directive 2009/38/EC on the establishment of a European Works Council.
As a consequence, the employees governed by UK law will need to designate another EU country to govern the EWCs as it can no longer be based in the UK. In addition, companies need to decide how to deal with their UK representatives, meaning the latter’s might have to leave the EWCs and their respective seats reallocated amongst the EU representatives.
In the event of UK based EWCs, the Brexit has indeed several consequences, namely on:
- the relevant thresholds for establishing an EWC (which could no longer be reached due to the withdrawal of the United Kingdom) ;
- the obligation for an EU employer to establish a new EWC (or an employee information and consultation procedure) located in one Member State ;
- the central management of a EU-scale company will have to be relocated in one Member State.
Following Brexit, IORPs registered or authorized in the UK will no longer be subject to the Directive (EU) 2016/2341, also known as IORP II-Directive, and will become third country undertakings. Consequently, the IORP II-Directive will no longer apply to IORPs located in the UK. As a consequence, sponsoring undertakings who are located in the EU but pay contributions to an IORP registered or authorized in the UK, will no longer benefit from the provisions of the IORP II-Directive.
Pension funds must consider the impact of dealing with asset managers and custodians located in the UK; contracts with EU-country group companies must be novated.
Following Brexit, the UK becomes a third country and therefore asset managers and custodians are obliged to notify the FSMA that they will continue providing services to Belgian regulated pension funds. The list of all third country service providers who notified the FSMA, will be updated in the course of January 2021. This list can be found on the website of the FSMA.
Back to Brexit