Country Update 2024: BELGIUM

Contributed by: Céline Verbrouck (Altea Avocats)

May 2024

1. Legislative Changes

In early May 2024, Belgium passed a law to introduce a “proactive return policy” for non-regular residents. The new rules introduce a systematic obligation on the part of the migrant to cooperate in the return process without considering the specificities of each individual situation.

2. Business Immigration

The Cooperation Agreement of 22 March 2024 implements changes regarding a number of categories of labor migrants for which specific European guidelines exist. Several general provisions applicable to European Blue Card holders, seasonal workers, Intra-Corporate Transferees (ICT), researchers, trainees and European volunteers are amended. The notification of the decision on the combined permit must be made within the processing period and there is no longer an automatic allocation if the period is exceeded. There is no longer any legal extension of stay after termination of admission to work for seasonal workers and ICTs.

The three regional regulations are also being changed. The Brussels regulations will probably change in the autumn of 2024. The changes from the Decree of the Flemish Government of 8 March 2024 came into effect on 1 May 2024 where, for example, the minimum duration of the employment contract is halved from at least one year to at least six months + a minimum gross annual salary of 60,321.6 euros will apply to applications for an EBC. In principle, an applicant must be able to submit at least a bachelor's degree. Alongside the European Blue Card, the parallel national systems for highly skilled people continue to exist in Belgium.

3. Family based immigration

3.1 The Court of Justice rules in the Afrin judgment of 18 April 2023 that Belgian law and practice may not always require that a family member of a third-country national presents himself in person at the competent diplomatic or consular post abroad to apply for family reunification. Directive 2003/86/EC (Family Reunification Directive) requires alternatives in situations where it is impossible or particularly difficult for the family member to move to the competent post. This applies, but not exclusively, to the family of a recognized refugee. Member States may request that the family member appear in person at a later stage of the application procedure provided that they facilitate the personal appearance of the family member. Member States must also limit personal appearances to what is strictly necessary. If possible, the family member should be present in person when the visa is issued.

3.2 Since January 15, 2024, the de facto partner of a Belgian or third-country national with the right of residence in Belgium must obtain a D visa (long residence) in order to conclude a marriage or legal cohabitation in Belgium. (Previously, only a C visa (short stay) was possible for those who were not exempted.

3.3 A circular dated 15 June 2023, in force since 9 December 2023, must provide victims of domestic violence with better information about the family reunification procedure about the existing protection under residence rights. However, it contains errors and does not address a number of concerns raised by GREVIO, the independent expert committee of the Council of Europe.

3.4 The civil courts ordered the administration to process humanitarian visas for Gazans due to the impossibility of making applications from Gazan territory (for persons unable to benefit from the Afrin case law of the Luxembourg Court of Justice).

4. Asylum

On 18 July 2023, the European Court of Human Rights (ECtHR) condemned the Belgian State in the Camara case. The Belgian authorities systematically fail to take final judicial decisions on the reception of applicants for international protection. Belgium violates the right to an effective legal remedy under Article 6 of the ECHR.

The civil courts have ordered the administration to process humanitarian visas for Gazans due to the impossibility of making applications from Gazan territory (for persons unable to benefit from the Afrin case CJUE).

5. Deportation

Belgian return policy in recent years has focused on dissuasion and coercion. This has led to a sharp rise in investment in forced return, without any commensurate or even significant proportional effects. This return policy also has a high cost in terms of human rights. (CEDH 1 February 2020, nr. 12848/15, Makdoudi c. Belgique ; CEDH 30 June 2020, nr. 54962/18, Muhammad Saqawat c. Belgique et CEDH, M.A. c. Belgique, 27 October 2020, nr 19656/18.)

The new law regarding the “proactive return policy” mentioned above lays down an obligation to cooperate with the return and a medical examination as part of the forced enforcement of the transfer, refoulement, return or removal order, where such an examination is required by the carrier or the country of destination or transit.

Children cannot be locked up in closed centres. However, families are relocated to “return homes”, whose legal regime differs little from that of detention centres.

6. Citizenship

The Belgian Nationality Code now provides for illiterate people and other people who cannot write an exception to the obligation to include a handwritten statement above the nationality declaration to write. They may make the statement orally before the registrar. Moreover, a new rule complies with the unconstitutionality that the Constitutional Court established on 23 March 2023, namely that no exception to the language requirement was provided for illiterates. Illiterate people who want to become Belgian only need to prove the oral level A2 of the European Framework of Reference for Languages.

Since 5 February 2024, an application can be suspended if the (first) name or date of birth is not identical in all the documents submitted, as well as in the population registers, the specific register for foreigners, and the criminal register.

People of Palestinian origin have difficulty asserting article 10 of the Belgian Nationality Code with regard to their children born in Belgium. The main arguments retained by the courts and tribunals are mainly based on the question of whether there exists a “Palestinian nationality” and “Palestinian nationals” within the meaning of Article 1, §1. of the 1954 Convention relating to the Status of Stateless Persons.