April 08, 2013
As of March 31, 2013, the Belgian Federal Government will coordinate more immigration compliance and enforcement between the Federal Government with the three regional inspectorate offices and communities. Compliance and enforcement will be better coordinated by the sharing of information amongst various government databases regarding foreign worker’s immigration and tax information.
As of June 1, 2011, the federal government signed a cooperation agreement with the regional governments in Flanders (the Flemish Region), the Brussels-Capital Region and the Walloon Region and with smaller communities to coordinate controls on illegal employment and social security fraud. Following up this agreement, the federal government enacted The Act of 1 March 2013 for implementation on March 31, 2013.
The Act is primarily dedicated to more efficient coordination between the different inspectorates (regional and federal) to carry out more immigration compliance inspections and to enforce penalties against illegal workers and those companies employing them. A recent example has been the government’s increased enforcement of the law on joint liability for wages, social security and income tax for employment of foreign nationals in Belgium; seconded employees and anti-abuse in respect of international social security.
To achieve more efficient coordination of inspections, the agreement includes active exchanges of information stored on various databases (work permits are issued regionally, residence permits at federal level, etc.), organization of joint training, multi-skill audits/inspections, etc.
Sponsoring Company Obligations
In an effort to align Belgium’s immigration enforcement with the European Union standards, there will be greater attention paid to companies enforcing internal compliance to avoid employing illegal workers. Highlights of the corporate obligations are as follows:
- Company sponsors must confirm a foreign worker is in possession of a valid Belgian residence permit.
- Immigration compliance will require company sponsors to maintain a copy of each foreign worker’s valid residence permit on file for inspection during the period of employment.
- Companies must file a declaration/notification for commencement and termination of the third-country national worker’s employment. This can be done via the online social security registration systems (e.g., DIMONA-primarily for resident workers and LIMOSA-for non-resident workers).
Penalties for Non-Compliance
For any company sponsoring foreign workers (Belgian-based or offices of overseas companies), employing foreign nationals who lack proper work and residence permissions may result in the government requiring payment of the following:
- Salary equal to the salary he would have to pay a legally employed worker; this payment obligation extends to social security and taxes
- The cost of repatriation the foreign worker to his or her home country
- A lump sum paid for accommodation
- Health care for the foreign worker and accompanying family
- Penalties for late payment and administrative fines
- Liability for outstanding wages (this also includes subcontracted employees)
- On conviction, employing staff without being in possession of a work authorization/permit carries a criminal fine of between EUR€ 600 and €6,000 (approximately USD$ 770 to $7,709) or an administrative fine ranging between EUR€ 300 and €3,000 (approximately USD$ 386 to $3,854) multiplied by the number of illegally employed workers (with a maximum).
- Employing staff without checking they are in possession of a residence card or – as an employer – not holding a copy carries a penalty against the employer of imprisonment of between six months and three years and a criminal fine of between EUR€ 3,600 and €36,000 (approximately USD$ 4,625 to $46,251) or an administrative fine ranging between EUR€ 1,800 and €18,000 (approximately USD$ 2,313 to $23,126).
- The same goes for the mandatory, principal, main contractor or intermediate contractor where their subcontractor does not comply with the obligations to check and keep a copy of the employee’s residence permit.
- Fines are multiplied by the number of employees concerned (with a maximum). In addition, the court can order a trading prohibition, block individuals from carrying on a certain occupation or order closure of a business.
- Finally, please note that an employee with no legal residence in Belgium and who is employed on the basis of an employment contract is deemed to have worked for at least three months unless there is evidence to the contrary. This means, in principle, that the wages for three months and any termination payment will be calculated on the basis of three months’ employment.
ACTION ITEMS FOR EMPLOYERS
With leveraging of technologies, many foreign governments are better able to track the travel history and residence status of foreign nationals while ensuring that communication with other agencies ensures wages are appropriately paid and the necessary income tax and social security withholdings are reported.
Therefore, companies should be aware that not only are the sanctions against illegally employing third country nationals tightened, but the control mechanisms are also becoming much more efficient.
Companies and assignees should be aware of the increased focus by the Belgian authorities to cross-communicate data relating to a business traveler through to traditional assignees to ensure that wages are collected, social security withholdings are made and that companies are employing long-term (i.e., over three months) workers having valid residence permits.
Caveat Lector | Warning to Reader
This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change a moment’s notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification. This alert was prepared by Glenn Faulk, Senior Manager, Knowledge Management. Pro-Link GLOBAL worked with our PLG | ISP Correspondent Office in Belgium to provide you this update.
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