Act Amending The Act Of 15 December 1980 On Access To The Territory, Residence, Establishment And Removal Of Foreigners (1)

Original Language Title: Loi modifiant la loi du 15 décembre 1980 sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers (1)

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15 MAI 2012. - An Act to amend the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER Ier. - General provisions
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act partially transposes Council Directive 2009/50/EC of 25 May 2009 establishing conditions for the entry and residence of third-country nationals for highly qualified employment.
CHAPTER II. - Amendments to the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens
Art. 3. Article 1er of the Act of 15 December 1980 on Access to Territory, Residence, Establishment and Displacement of Aliens, replaced by the Act of 15 July 1996 and amended by the Act of 19 January 2012, is supplemented by a 15°, as follows:
"15th European blue card: the title that allows the foreigner to stay for a period of more than three months in the Kingdom in accordance with the conditions set out in Articles 61/26 to 61/31 and to work therein in accordance with the regulations concerning the occupation of foreign workers. »
Art. 4. Article 10bis of the Act, replaced by the Act of 8 July 2011, is supplemented by a § 4, which reads as follows:
“§4. § 2 is also applicable to family members referred to in Article 10 § 1erParagraph 1er, 4° to 6°, of the foreigner who is authorized to stay under section 61/27.
However, when the family is already incorporated or reconstituted in another EU Member State, the foreigner joins must not demonstrate that it has adequate housing to receive the family member(s) and, with regard to the condition of the possession of stable, regular and sufficient livelihoods, proof that the family member has such personal means is also taken into account. In order to be able to benefit from this particular regime, the members of the family concerned must produce the residence permit issued to them by a Member State of the European Union and the proof that they have resided in that State as a member of the family of a holder of a European blue card. »
Art. 5. Article 10ter of the same law, inserted by the law of 15 September 2006 and amended by the laws of 25 April 2007 and 8 July 2011, is supplemented by a § 2ter, as follows:
§ 2ter. By derogation from § 2, the decision on the application for permission to stay of family members referred to in Article 10bis, § 4, shall be taken and notified no later than four months after the date of filing of the application as defined in § 1er.
In exceptional cases related to the complexity of the examination of the application, as well as in an investigation into a marriage referred to in Article 146bis of the Civil Code or the conditions of the lasting and stable relationship referred to in Article 10, § 1erParagraph 1er, 5°, the Minister or his or her delegate may, by a reasoned decision notified to the applicant, extend this period for a period of three months to one resumption.
If at the expiry of the four-month period following the date of filing of the application, possibly extended in accordance with paragraph 2, no decision has been taken, the residence permit must be issued when the required documents have been produced. Otherwise, permission to stay is denied. »
Art. 6. In section 12bis of the Act, replaced by the Act of 8 July 2011, the following amendments are made:
1° it is inserted a § 3bis, written as follows:
§ 3bis. By derogation from § 2, paragraphs 3, 5 and 6 and § 3, paragraphs 3 and 4, the decision on admission to stay of family members referred to in Article 10, § 1erParagraph 1er, 4° to 6° of the long-term resident alien and former holder of a European blue card, is taken and notified as soon as possible and no later than four months after the date of filing of the application as defined in § 2, paragraph 2.
In exceptional cases related to the complexity of the examination of the application, as well as in an investigation into a marriage referred to in Article 146bis of the Civil Code or the conditions of the lasting and stable relationship referred to in Article 10, § 1erParagraph 1er, 5°, the Minister or his delegate may, by reason of decision, be notified to the applicant, extend this period for a period of three months to one resumption.
If at the expiry of the four-month period following the date of filing of the application, possibly extended in accordance with paragraph 2, no decision has been made, the admission to the stay must be recognized when the required documents have been produced. Otherwise, admission to stay is refused. »;
2° § 4, paragraph 3, is replaced by the following:
“The provisions of § 3, paragraphs 3 and 4 and § 3bis are also applicable. »
Art. 7. In section 13 of the Act, replaced by the Act of 8 July 2011, the following amendments are made:
1° in § 1er, paragraph 3, the words "Article 12bis, §§ 3 or 4" are replaced by the words "Article 12bis, §§ 3, 3bis or 4";
2° in § 1er, paragraph 7, the words "Article 10bis, §§ 1 to 3" are replaced by the words "Article 10bis, §§ 1 to 4".
Art. 8. In section 15bis of the Act, inserted by the Act of 25 April 2007, the following amendments are made:
1° in § 1era sub-item is inserted between subparagraphs 1er and 2:
"However, the condition under section 14, paragraph 2, does not apply to a foreigner who is authorized to stay in accordance with section 61/27. In addition, for the calculation of the required five-year period, the foreigner may accumulate the stays made in the various Member States of the European Union provided that he is required to justify five years of legal and uninterrupted stay in the territory of the Union as holder of a European blue card, two years of legal and uninterrupted stay, immediately preceding the introduction of the application, in the Kingdom. »;
2° in § 1er, paragraph 3, which becomes paragraph 4, the number "2" is replaced by the number "3" and the words "and section 61/27" are inserted between the words "section 61/7" and the word "will";
3° in § 4, a paragraph written as follows is inserted
between subparagraphs 1er and 2:
"In respect of a foreigner authorized to stay under section 61/27, absences from the Union's territory do not interrupt the five-year period, if they do not last more than twelve consecutive months and do not exceed a total of eighteen months over the five-year period. »
Art. 9. In Article 17 of the Act, amended by the Act of 25 April 2007, § 2 is supplemented by the following sentence:
"When the status of the long-term resident is granted to the holder of a European blue card, he is granted a long-term resident residence permit with the special mention "old holder of a European blue card. »
Art. 10. In section 19 of the Act, replaced by the Act of 25 April 2007, the following amendments are made:
1° in § 1era sub-item is inserted between paragraphs 2 and 3:
"A foreigner authorized to stay under Article 61/27 and then granted long-term resident status, loses his right to return to the Kingdom only if he leaves the territory of the Member States of the European Union for twenty-four consecutive months. This same provision applies to family members referred to in Article 10, § 1erParagraph 1er, 4° to 6°, which obtained long-term resident status. »;
2° in § 1er, paragraph 3, which becomes paragraph 4, the words "or twenty-four months" are inserted between the word "month" and the word "consequential";
3° in § 2, second paragraph, the words "paragraph 2" are replaced by the words "paragraphs 2 and 3";
4° § 4 is supplemented by a paragraph, which reads as follows:
"The Minister or his delegate is also required to return to the foreigner who has been authorized to stay in the Kingdom pursuant to Article 61/27 and the members of his or her families referred to in Article 10, § 1erParagraph 1er, 4° to 6°, subject to a removal measure taken by the competent authority of another Member State following the refusal of their application for stay on the basis of the provisions of Directive 2009/50/EC, even when the validity period of the residence permit has already expired. »
Art. 11. In title II of the same law, a chapter VIII is inserted, entitled "Chapter VIII. - WORKERS HIGH QUALIFIES - EUROPEAN BLEUE CARTE »
Art. 12. In Chapter VIII inserted by Article 11, an article 61/26 is inserted as follows:
"Art. 61/26. Without prejudice to international conventions, this chapter applies to a worker who is not a citizen of the European Union and who submits a request for permission to stay for more than three months in the Kingdom in order to obtain a European blue card.
This chapter does not apply to foreigners:
1° that is authorized to stay in the Kingdom under temporary protection or has filed an application for the same reason and is pending a decision;
2° which receives international protection under Council Directive 2004/83/EC of 29 April 2004 concerning minimum standards relating to the conditions to be met by third country nationals or stateless persons in order to be eligible for refugee status or persons who, for other reasons, need international protection, and with respect to the content of these statutes or who has filed an application for the same reason and for which a final decision has not yet been made;
3° that is protected in accordance with national legislation, international obligations or national legal practices or has filed an application for the same reason and for which a final decision has not yet been made;
4° that asked to be able to stay in the Kingdom as a researcher, within the meaning of Directive 2005/71/EC, to conduct a research project;
5° that is a member of the family of a citizen of the Union having exercised or exercising his right to free movement within the Union, in accordance with the Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the Union and members of their families to circulate and stay freely in the territory of the Member States;
6° which is granted long-term resident status in accordance with Directive 2003/109/EC and has used its right to stay in the Kingdom to exercise economic activity as an employee or an independent worker;
7° that enters the Kingdom under international agreements facilitating the entry and temporary stay of certain categories of natural persons in relation to trade and investment activities;
8° that was allowed or allowed to stay in the Kingdom as a seasonal worker;
9° whose distance is suspended on grounds of fact or law;
10° that enters the scope of the Directive 96/71/EC of the European Parliament and the Council of 16 December 1996 concerning the detachment of workers carried out in the framework of a service provision, as long as it is detached from the territory of the Kingdom;
11° which, under agreements between the Union and its Member States and third countries, enjoy rights in the matter of freedom of movement equivalent to those of the citizens of the Union. The same is true of family members.
Art. 13. In the same chapter VIII, an article 61/27 is inserted as follows:
"Art. 61/27. § 1er. Where the application for a residence permit of more than three months in the Kingdom is filed with a Belgian diplomatic or consular post by the foreigner referred to in section 61/26, the Minister or his or her delegate shall grant the residence permit provided that the competent regional authority shall grant an interim occupation authorization to the employer concerned, that the foreigner is not in one of the cases provided for in section 3, paragraph 1er, 5° to 8°, and as long as it produces the following documents:
1st a passport or travel document taking place during validity;
2° a medical certificate certifying that there is no disease listed in the Schedule to this Act;
3° an extract from the criminal record or an equivalent document issued by the country of origin or by the country of its last residence and attesting that it was not convicted for crimes or offences of common law;
4° the evidence that he has subscribed health insurance covering all risks in Belgium;
5° a copy of the work contract.
However, if it is unable to produce the documents referred to in paragraph 1er, 2° and 3°, the Minister or his delegate, may, in the circumstances, authorize the foreigner to stay in Belgium for the purpose of exercising a highly qualified job.
§ 2. A foreigner who is already allowed or allowed to stay for a maximum of three months or for more than three months in the Kingdom may apply for a residence permit from the town of the locality where he or she stays. The Minister or his or her delegate shall grant leave of residence provided that the competent regional authority shall grant an interim leave of employment to the employer concerned and that the foreigner shall produce the documents referred to in § 1er.
The King shall determine the procedure for the introduction of the application referred to in paragraph 1er.
§ 3. A foreigner who has resided for eighteen months in another Member State of the European Union as a holder of a European blue card may apply for a residence permit of more than three months in the Kingdom in accordance with § 1er, on presentation of its valid European blue card.
The foreigner referred to in paragraph 1er may also submit its application as soon as possible and no later than one month after its entry into the Kingdom, in accordance with § 2, upon presentation of its European blue card.
The King shall determine the manner in which the application referred to in paragraph 2.
§ 4. At the time of the application for a residence permit, the foreigner is required to elect a residence in Belgium.
Failing to have elected domicile in accordance with paragraph 1er, the foreigner is deemed to have been elected to the Foreign Office.
Any modification of the elected domicile must be communicated, under recommended fold or against receipt at the Foreign Office.
§ 5. The Minister or his or her delegate refuses permission to stay if the conditions related to the stay are not met, if it appears from the effective residence control to which the mayor or his or her delegate is required to proceed that the alien does not reside in the territory of the municipality or in the event of fraud. »
Art. 14. In the same chapter VIII, an article 61/28 is inserted as follows:
"Art. 61/28. The decision on the application for a residence permit for the purpose of obtaining a European blue card is taken and notified to the interested party as soon as possible and no later than the noon days after the date of filing the application incorporating the documents referred to in Article 61/27, § 1er.
When the information or documents produced in support of the application for permission to stay are insufficient, it is specified to the interested party what additional information or documents it must produce within 30 days. In this case, the period of nonante days referred to in paragraph 1er is extended by an additional 30 days. If the information or additional documents have not been produced within the deadlines, the application is rejected.
If at the expiry of the non-ante-day period referred to in paragraph 1er, possibly extended in accordance with paragraph 2, no decision has been taken, the residence permit is granted. »
Art. 15. In the same chapter VIII, an article 61/29 is inserted as follows:
"Art. 61/29. § 1er. When the alien is allowed to stay in the Kingdom pursuant to Article 61/27, he is issued a European blue card whose validity period is identical to the length of the residence permit.
Permit to stay referred to in paragraph 1er is limited to a renewable period of 13 months. After two years, during the renewal of the European blue card, the authorization is granted for a period of three years.
§ 2. Registration in the register of foreign nationals referred to in § 1er takes place in accordance with Article 12.
§ 3. The King determines:
1° the model of the European blue card, as well as the terms and conditions of the grant procedure;
2° the deadlines, conditions and modalities for the renewal of the European blue card.
§ 4. During the first two years as a holder of a European blue card, the following amendments are subject to the issuance of a new residence permit as referred to in section 61/27:
a. employer change;
b. decrease in the duration of the contract;
c. decrease in gross annual salary;
d. termination of employment contract.
After two years, the holder of a European blue card must notify the amendments referred to in paragraph 1er to the minister or his delegate. »
Art. 16. In the same chapter VIII, an article 61/30 is inserted as follows:
"Art. 61/30. § 1er. The Minister or his delegate shall terminate the residence permit as a highly qualified worker, or refuse to renew the residence permit if the holder of the European blue card:
1° no longer meets the conditions referred to in section 61/27;
2° works, but no longer meets the conditions of employment to which the holders of the European blue card are subject, as set out in the regulations concerning the occupation of foreign workers;
3° used false or misleading information, false or falsified documents, used fraud or other illegal means;
4° was a complete unemployed person indemnified for more than three consecutive months or was a complete unemployed person indemnified for employment more than once during the period of validity of the residence permit;
5° failed to communicate to the Minister or his delegate the amendments referred to in section 61/29, § 4, paragraph 1er, provided that the lack of notification is not linked to a reason independent of its will.
§ 2. The Minister or his delegate may terminate the residence permit as a highly qualified worker, or may refuse to renew the residence permit if the holder of the European blue card:
1° does not have sufficient resources to support its own needs and those of its family members, so as not to become a burden for public authorities. As part of the assessment of resources, consideration is given to the personal situation of the foreigner and, in particular, to the nature and regularity of his or her income and to the number of family members who are dependent on him;
2° has not, in accordance with Article 5 of the Law of 19 July 1991 on Population Registers, Identity Cards, Foreign Cards and Residence Documents and amending the Act of 8 August 1983 organizing a national register of natural persons, communicated the establishment and change of its main residence in Belgium.
§ 3. The Minister or his or her delegate has the right to have all relevant documents and information communicated by any competent institution or administration including the National Employment Office. »
Art. 17. In the same chapter VIII, an article 61/31 is inserted as follows:
"Art. 61/31. § 1er. Without prejudice to section 62, any notification may be validly made to the elected domicile of the alien and to the address of the employer concerned under recommended fold or against acknowledgement of receipt.
If the foreigner has elected his or her lawyer's residence, the notification may also be made validly by fax.
§ 2. Without prejudice to § 1era copy of any decision is sent by regular mail to the actual address, if known and if it is after the choice of the elected domicile, as well as to the foreign lawyer and the employer concerned. »
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 15 May 2012.
ALBERT
By the King:
The Minister of Justice,
Ms. A. TURTELBOOM
The State Secretary to the Asylum
and Migration, and Social Integration,
Ms. M. DE BLOCK
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2011-2012.
House of Representatives
Documents. - Bill, 53-2077/001. - Amendments, 53-2077/002. - Report, 53-2077/003. - Text corrected by the Commission, 53-2077/004. - Amendment, 53-2077/005. - Text adopted in plenary and transmitted to the Senate, 53-2077/006.
Full report: 29 March 2012.
Senate
Documents. - Project not referred to by the Senate, 5-1558/1.