Contributed by: Céline Verbrouck (Altea Avocats)
June 2019 to May 2021
1. Country Overview
Belgium is experiencing an increase in immigrant inflows and a decrease in outflows. Among EU citizens, more than half of first-issue residence permits are being granted for professional reasons. On the other hand, in the case of third-country nationals, family reasons are given as the main reason in the same scenario (45%).
Belgium is embarking on a project to completely rewrite its immigration rules in preparation of a draft ‘Migration Code’. This comes as a result of our rules being so disseminated that they have become illegible.
Belgium has a large number of ‘transmigrants’ who do not seek asylum in Belgium but who pass through the country temporarily on the way to the UK. The majority of these people are taken in by families. Some hosts have been convicted of human trafficking in this context, however they have been recently acquitted by the Brussels Court of Appeal (not a crime of solidarity). Any undocumented foreigners (smugglers) who were prosecuted with these Belgians had their sentences reduced on appeal due to the recognition that they were also victims.
Belgium is trying to pass a law to allow the arrest of foreigners at the homes of Belgian families. For the moment, the project has not proved successful, in particular with regard to respect for private life and the fact that children from Belgian families could be traumatised by a night police raid (potentially affecting the best interests of the child).
2. Legislative Changes
Following an appeal by Altea lawyers to the Constitutional Court, the Bébé Papiers law (refusal to recognise a child for suspicion of residency fraud) had to be amended to provide for the possibility of legal action.
Brexit: new residence permit for UK nationals and their family members (M card) or for cross border workers (N card) in case of applying the freedom of movement according to the EU Directive before 31 December 2020 = ‘beneficiaries of the withdrawal agreement’.
3. Business Immigration
COVID-19: Possibility to apply for a single permit through electronic channels; extension of a stay for 90 days for single permit holders if force majeure prevents a return and the possibility of obtaining a work permit through a fast-track procedure;
right to work for asylum seekers from the moment an application is submitted (previously it was only after 4 months) to meet the need for seasonal workers in the agricultural and horticultural sector.
Belgium’s delay in transposing European directives on economic migration: Directive (EU) 2016/801 relating to students: no current right to extend their stay to look for work (implementation in progress).
ICT (EU) Directive 2014/66: only partial implementation and infringement proceedings against Belgium by the European Commission.
Directive (EU) 2014/36 relating to seasonal workers: full implementation but delayed.
Directive (EC) 2009/50 Blue card: full transposition, but rarely used in practice in Belgium given the more favourable conditions for obtaining a work permit as 'highly qualified’ (without examining the labour market) with a gross annual salary of €43,395 or above (seconded staff: €3,616.25 x 12; ONSS in BE: €3,117.46 x 13.92).
4. Family based immigration
In the case of violence: supporting residency but not granting an autonomous right of residence (contrary to the Istanbul Convention - see GREVIO report on Belgium of 2 September 2020).
The date to be taken into account, in order to determine whether a family member of a sponsor is a ‘minor child’ is the date of submission of the application for entry and residence (and not of the decision). (CJEU, B.M.M., B.S., B.M. and B.M.O. v Belgian State, 16 July 2020, Joined Cases C-133/19, C-136/19 and C-137/19).
Failure of Belgium’s plan to organise asylum interviews via video conferencing (Council of State ruling of 7 December 2020).
Annulment by the Belgian Constitutional Court on 25 February 2021 of several measures implemented in a mammoth reform in 2017, in particular concerning (1) the confiscation of the passports of applicants for international protection (privacy violation) and (2) the requirement to limit the possible scenarios whereby asylum authorities can communicate data to strict cases, such as the potential danger to national security or the security of a source (maintaining confidentiality).
Increase in detentions in closed centres by +53% while the figures for repatriation (-44%) and voluntary returns (-24%) have been decreasing since 2016.
Validation of the right to deport by the Court of Cassation (10 March 2021) despite travel restrictions linked to COVID-19.
The Constitutional Court made a decision to grant a right to accommodation in an individual structure (and not a collective centre) for families residing without authorisation if the medical situation of a family member makes collective accommodation absolutely impossible.
Child detention was suspended in Belgium following a decision of the Council of State of 1 October 2020 (due to the restriction of the right of access to outdoor spaces to 2 hours per day, the right to place a child over 16 years in isolation, and to the right of staff to unconditional access to the accommodation between 6 a.m. and 10 p.m.). Belgium is trying to respond to the judgement to once again allow the detention of families and children.
Belgium was convicted by the ECHR for the removal of a foreigner to Sudan following identification by the Sudanese secret services in Belgium. The man had not requested asylum and the removal took place without taking into account the human rights situation in Sudan (MA v. Belgium, 27 October 2020, no. 19656/18).
Belgium was convicted by the ECHR for repatriation to Tunisia of a foreigner who was unable to acknowledge a Belgian child and obtain a residence linked to his parental relationship, due to the complexity of the procedures (violation of article 8 ECHR). (Makdoudi v Belgium, 18 February 2020).
CJEU: M.A. v Belgium, 11 March 2021, C-112/20: taking into account the best interests of the child as an absolute basic principle when a return decision affects a child, either directly or indirectly (if the return decision concerns its only parent). (Article 5 of the return decision, read in conjunction with Article 24 of the Charter).
Deadlines for nationality procedures extended from 4 to 6 months due to COVID-19.
End of the ‘cartes spéciales’ (special permits) saga: residence permits are residence permits valid for European citizens.
Questions remain about the validity of M cards (Brexit) as valid residence permits for the submission of applications for nationality.