On 31 December 2020 the United Kingdom left the European Union, which resulted in the end of the right of free movement of British nationals and employees within the European Union (and vice versa).
Despite the transition period set forth in the Withdrawal Agreement between the United Kingdom (UK) and the European Union (EU) starting on 1 February 2020 and ending on 31 December 2020, the movement of British employees in the EU and EU-citizens in the UK can at least be called challenging.
What is the status on labor mobility post Brexit? The principles on the access to the Belgian labor market explained.
1. The Withdrawal Agreement – Who are the beneficiaries?
The Withdrawal Agreement aimed to protect the acquired rights of EU-citizens and nationals of the UK, whether these rights were acquired when the UK was still a member of the EU or during the transition period when the UK was no longer part of the EU.
UK nationals (and their family members) who have exercised their right of free movement of persons and employees, prior to 1 January 2021, could preserve their right of residence and the right to work in Belgium based on the Withdrawal Agreement on the condition that they already worked and resided in Belgium or were active as frontier workers on 31 December 2020. Moreover, these persons had to apply for a status of "beneficiary of the Withdrawal Agreement" within the municipality/place of employment to obtain a residence permit M or N no later than 31 December 2021.
As from 1 January 2021, after the transition period, two categories of British nationals can be determined:
- Those who have exercised their rights of free movement of persons and employees and who have worked and resided in Belgium or were active as a frontier worker by the end of the transition period (i.e. 31 December 2020). This applies to citizens who have worked and resided in Belgium before the transition period and also for those who have settled or came to work in Belgium during the transition period.
For this category of persons, the Withdrawal Agreement provides for 2 kinds of statuses:
- A residence status as a "Beneficiary of the Withdrawal Agreement".
These are economic active citizens and students. This status is meant for persons who wish to maintain their residence in Belgium at the end of the transition period. These persons have obtained an M card in Belgium that is valid for 5 years, and after which a renewal must be requested. These persons can obtain a permanent residence under the same conditions (M card which is valid for 10 years).
- The status of a "(British) Frontier Worker", is meant for persons who resided in the UK or another member state of the EU before the end of the transition period and were working in Belgium as an employee or a self-employed worker, who wish to continue their economic activities in Belgium. These persons hold a N card which is valid for 5 years.
- Citizens who have not established any rights in the framework of the right of free movement of persons and employees during the transition period, in other words persons who came to Belgium to settle or to work as from 1 January 2021, are considered as third country nationals.
These persons will have to follow the entry rules and mechanisms that apply for third country nationals who wish to reside and work in Belgium. Hence, these persons will have to apply for a work permit, a single permit (for residence and employment of more than 90 days) or a professional card (for self-employed persons) to work and reside in Belgium.
2. What with seconded employees?
Seconded employees do not enjoy any protection under the Withdrawal Agreement.
In case of secondment of a UK-national to Belgium, the Belgian Secondment Law will apply for that person.
As from 1 January 2021, the seconded employee – who is not eligible for a beneficiary status on other grounds than his employment as a seconded employee – must apply for a work permit or a single permit (residence of more than 90 days) with the competent region.
3. Freedom to provide services
On 1 January 2021 the right of freedom to provide services between the UK and the EU has come to an end as well. The EU-UK Trade and Cooperation Agreement of 24 December 2020 covers a new framework for providing services between the EU and the UK.
This agreement determines the industries between which services can be organised. Hence, providing services is not free at all. A British employer will have to request for permission to Belgian authorities to provide services in Belgium with his workers. On its turn, the Belgian employer will have to request for permission with the British authorities to provide services with his workers on the territory of the UK.