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Tougher position towards the employment of employees who illegally stay in Belgium (part II)

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The Act providing for sanctions and measures against employers of illegally staying third-country nationals has been published in the Belgian State Gazette of 22 February 2013. This act, of which we have already discussed the draft in our Headlines of 26 July 2013, implements the European Directive 2009/52 into Belgian law. Hereunder we will briefly focus on the new obligations applicable to employers who wish to employ third-country nationals in Belgium. We also discuss to what extent someone who outsources work can be held liable if it later emerges that the work is carried out by illegally staying employees. The new provisions have entered into force on 4 March 2013.

From now on, Belgian or foreign employers who wish to employ third-country nationals[1] in Belgium must:

1. previously check whether the employees concerned have a valid residence permit or other authorization for stay;

2. keep a copy or record of the residence permit or other authorization for stay available for the competent Social Inspectorates for at least the duration of the employment;

3. notify the beginning and the end of the employment of the employees concerned, i.e. the so-called “DIMONA”- and “LIMOSA”-declaration of the start and termination of the employment.

Especially the obligation mentioned under point 1 will, in practice, not be easy to comply with for many employers. For example: a US employee who comes to Belgium in order to attend a business meeting on behalf of his foreign employer during a couple of days is legally staying in Belgium, if he has not yet stayed more than 90 days in the Schengen area in a period of 6 months. However, he will be illegally staying, as soon as his stay has exceeded the 90 days-limit.

If the employer does not observe one of the above obligations, he can be punished with either imprisonment for a term ranging from six months to three years and/or a criminal fine between 3.600 and 36.000 EUR (per employee) or an administrative fine between 1.800 EUR and 18.000 EUR (per employee) or even be prohibited to carry on his professional activities or be obliged to close his company. These sanctions even apply if the residence permit or other authorization for stay were forged by the employee and it is proved that the employer had knowledge of the forgery.

If the employer employs illegally staying third-country nationals (which thus not or no longer fulfil the conditions for entry to or residence in the territory) for the performance of work that was (sub)contracted out to him, the Social Inspectorate will, from now on, inform anyone who has contracted out the work (both the initial contractor as possible intermediate contractors) about the fact that illegally staying employees have been carrying out the work that was contracted out.

As of the moment that the person who has contracted out the work (initial contractor or intermediate contractor) is informed, through a notification by the Social Inspectorate or otherwise, of the fact that illegally staying employees were employed for the performance of the work that was contracted out, he will be:

- jointly and severally liable for any outstanding remuneration to the employees concerned which pertains to work carried out to his benefit, whereby non-payment of the remuneration can result in either a criminal fine between 300 EUR and 3.000 EUR (per employee) or an administrative fine between 600 EUR and 6.000 EUR (per employee).

- punishable with either imprisonment for a term ranging between 6 months to 3 years and/or a criminal fine between 3.600 EUR to 36.000 EUR (per employee) or an administrative fine between 1.800 EUR to 18.000 EUR (per employee).

This liability can be avoided in certain well-defined situations, provided that one has obtained a declaration of his contracting party stating that the latter does not employ or will not employ illegally staying employees. In other cases, it will only be possible to avoid liability, if one immediately ensures that the work that was contracted out is no longer carried out by illegally staying employees. If the illegal employees were employed by the direct contracting party, it suffices to terminate the contract with this service provider. If the illegal employees were employed by someone who is not a contracting party (a subcontractor), one shall have to urge his contracting party to terminate the cooperation with the subcontractor and, if the contracting party refuses to do so, to terminate the contract with the latter. To make this possible, it is advisable to include the above declaration as well as the necessary termination clauses in every service contract henceforward.

 

[1] Any person who is not a citizen of the EU and who is not a person enjoying the right of free movement.