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COVID-19: Border restrictions and remobilization opportunities for business

Jo Antoons, Attorney & Managing Partner and Andreia Ghimis, Senior Consultant, Fragomen

EUROPEAN CONTEXT

The COVID-19 crisis has drastically impacted travel both to and within the European Union (EU). This has been tremendously challenging for companies in Europe which suddenly were confronted not only with barriers to the movement of critical talent from outside the EU, but also with a limited capacity to mobilize employees within the EU’s Single Market. Recently, the EU has recommended several border relaxation measures in order to stimulate economic recovery.

To start with, a re-opening of the EU’s internal borders began as of mid-June. Not very long after this, at the beginning of July, the EU Council advised Member States to also open external borders for the residents of 15 green listed non-EU states in which the health situation is similar or better than that of the EU. In addition, Fragomen was able to secure with the European Commission an exemption from the EU entry ban for highly skilled migrants from all countries (green listed or not) when their work cannot be postponed or performed from abroad.

The list of 15 non-EU states has already been reviewed (and will be updated again in the coming weeks and months, on a regular basis). Currently, only 13 non-EU states are still on the green list. These are: Algeria, Australia, Canada, China, Georgia, Japan, Morocco, New Zealand, Rwanda, South Korea, Thailand, Tunisia and Uruguay. Notably, the US was not part of the initial list and has not been added yet either.

BELGIAN POSITION

Despite the EU recommendations, the situation in each European country is different. While the Netherlands and Germany decided to follow the EU position, others are more reluctant to do so, especially at the pace suggested by EU leaders. Belgium is part of the latter group.

Regarding travel from inside the EU (including the UK and the four non-EU Schengen countries, Iceland, Liechtenstein, Norway and Switzerland), Belgium has a system of green/orange/red zones depending on their epidemiological situation. Non-essential travel from red zones into Belgium is forbidden, while essential travel is subject to a 14-day quarantine and testing. The advice for individuals travelling from orange areas is to maintain a high level of vigilance.

Belgium has not lifted restrictions for non-essential travel from outside the EU, not even for residents of green listed countries as of yet, but has agreed to consider highly skilled workers as essential travelers and exempt them from the entry ban.

Who does Belgium consider to be a highly skilled essential worker? Regarding travel from outside the EU, for now, Belgium only considers EU Blue Card holders as essential highly skilled workers exempted from restrictions. This, while the majority of the non-EU highly qualified workers are not EU Blue Card holders, but Single Permit holders such as highly skilled or managerial employees. Therefore, contrary to neighboring countries, the current Belgian position unfortunately does not facilitate the remobilization of foreign staff necessary for business recovery and economic growth.

Government authorities have acknowledged the need to broaden the categories of highly skilled workers that are able to enter Belgium from whatever country outside the EU. New guidelines have been drafted that should liberalize the entry and the visa processing of a larger group of highly skilled workers, including all those that are authorized to work in Belgium based upon higher education or professional qualifications. Although these new policies should be in the final stage, they are not yet operational probably due to the recent resurgence of the pandemic in Belgium.  

All these measures and their ever-changing nature might seem a complicated puzzle to solve for companies which are aiming to remobilize their employees and send them to Belgium or elsewhere in Europe.

OPPORTUNITIES FOR WORKFORCE PLANNING: WHAT SHOULD COMPANIES DO

  1. Keep up to date with government measures. These measures are constantly changing and windows of opportunity for enhanced mobility can appear. It is crucial to develop broad awareness of the restrictions as well as deep understanding of business solutions.
  2. Develop creative remobilization strategies. As highlighted above, while some EU countries may be more strict, others are opening their borders more rapidly and to larger groups of countries/individuals. Employers can use other countries as entry points in the EU than the ultimate destination countries they envisage.
  3. Explore EU-wide permits/facilitated immigration routes. European legislation and the case law of the European Court of Justice provide facilitated routes for non-EU nationals to work in more than one EU country. This allows companies to explore the full potential of their EU-based workforce while it remains challenging to bring employees from outside the EU.
  4. Make sure you remain compliant. The work and travel patterns of your employees may adjust substantially to the current circumstances: work from home and/or client site, furlough schemes, more frequent business travel inside the EU. Employers must remain vigilant about the employment, immigration and social security legislation requirements they may have to comply with in this new context.

About the authors

Jo Antoons, Attorney & Managing Partner, Fragomen

Jo Antoons has 15+ years’ experience in the mobility and labor law field. Jo is responsible for managing corporate immigration compliance and advisory work across Europe, particularly for Belgium, the Netherlands and Luxembourg. She is considered an immigration law expert in the industry and has spoken at numerous seminars and authored a range of publications related to economic migration and international social security law. Jo leads Fragomen’s Government Strategies initiatives with European institutions.

Andreia Ghimis, Senior Consultant, Fragomen

Andreia Ghimis is part of Fragomen’s Brussels office EU client advisory team. She joined the firm in 2006 and works on developing the government strategies of the Brussels office. Andreia has been involved in several research projects focused on the EU’s legal migration policy, the free provision of services and the free movement of people. She has extensive experience with the mobility of key personnel and monitoring the incorporation of EU and transnational rules into national legislation and practice.