Constitutional Court, Judgment No. 51/2026 of 23 April 2026, Article 8, § 1, paragraph 1, 2°, b), of the Belgian Nationality Code
By Judgment No. 51/2026 of 23 April 2026, the Belgian Constitutional Court held that Article 8, § 1, paragraph 1, 2°, b), of the Belgian Nationality Code violates Articles 10, 11 and 22bis of the Constitution insofar as it does not allow the declaration claiming the attribution of Belgian nationality for a child born abroad to be made when the Belgian parent, who was also born abroad, has died within five years of that child's birth without having made such declaration.
In our view, this judgment is a turning point. In its principle, it acknowledges a genuine subjective right of the child to be recognised as Belgian where the declaration provided for within the five-year period could not be made by the Belgian parent who has passed away, even though the situation otherwise warrants the attribution of Belgian nationality.
The legal framework at issue
Article 8, § 1, paragraph 1, 2°, b), of the Belgian Nationality Code provides that a child born abroad to a Belgian parent who has made, within five years of birth, a declaration claiming the attribution of Belgian nationality for that child, is Belgian.
This rule applies where the child is born abroad to a Belgian parent who was also born abroad and where the child holds another nationality. In that situation, Belgian nationality is not attributed automatically: a formal declaration must be made by the Belgian parent in person, within five years. According to the Court, only that parent may sign the declaration. No third party, including the other parent, may do so on his or her behalf.
The facts
The mother, who became Belgian in 2006 after more than five years of residence in Belgium, returned to live in Turkey in 2011. She had a first child there in 2014, for whom she filed a declaration of attribution of Belgian nationality on the basis of Article 8, § 1, paragraph 1, 2°, b), of the Belgian Nationality Code. On 11 March 2016, she gave birth to a second child, A.C. She passed away on 26 May 2016, before initiating the steps to attribute Belgian nationality to that child.
The father, a Turkish national, applied to the Belgian Consulate General in Istanbul for the attribution of Belgian nationality to A.C. The application was rejected on the ground that only the Belgian parent could sign the declaration. The challenge brought before the French-speaking Court of First Instance of Brussels led that court to refer a preliminary question to the Constitutional Court.
The Constitutional Court's position
The Court compares two categories of children born abroad to a Belgian parent also born abroad: those whose Belgian parent is alive and may have Belgian nationality attributed to them on the basis of a declaration made within five years, and those whose Belgian parent died within that period without having made such a declaration, and who are deprived of that possibility.
The Court holds that the resulting difference in treatment, although based on an objective criterion, produces disproportionate effects. The death of the Belgian parent does not necessarily eliminate the child's effective link with Belgium, in particular where other family members are Belgian. Yet the child thus deprived of the declaration has, because of the death, no equivalent route to obtain Belgian nationality on the basis of that parent's nationality. The pathways under Articles 12bis, 17 or 19 of the Belgian Nationality Code all require the person concerned to be at least eighteen years old and to satisfy the residence condition under Article 7bis, which in practice excludes a child residing abroad. The acquisition by option previously available under former Articles 13 and 14 of the Code was abolished by the Law of 4 December 2012.
The Court also notes that, in Article 8, § 2, of the Belgian Nationality Code, the legislator has already protected the interest of a child born to a Belgian parent where that parent dies before the birth, but did not address the situation of death occurring within five years after the birth. The same protective rationale should apply.
The Court rules that Article 8, § 1, paragraph 1, 2°, b), of the Belgian Nationality Code violates Articles 10, 11 and 22bis of the Constitution insofar as it does not allow the declaration to be made when the Belgian parent, also born abroad, has died within five years of the birth without having made such declaration.
A landmark judgment: the recognition of a subjective right of the child
The reach of this judgment goes well beyond the specific situation of the death of the Belgian parent. At point B.13, the Court states that, pending legislative intervention, the competent courts and authorities must put an end to the consequences of the unconstitutionality identified. In other words, the child concerned may already today claim Belgian nationality, without having to wait for legislative reform.
This recognition of a subjective right of the child, where the absence of declaration within five years cannot be attributed to an informed choice of the Belgian parent, reshapes the reading of Article 8 of the Belgian Nationality Code. It redirects the analysis towards the child's interest and the reality of the effective link with Belgium, rather than towards the mere formality of the declaration.
A useful reading for the many pending cases seeking an extension of the five-year deadline
A significant number of proceedings are currently pending before the Belgian courts in which an extension of the five-year deadline of Article 8, § 1, paragraph 1, 2°, b), of the Belgian Nationality Code is sought. Case law has accepted for several years that this deadline, which is a forfeiture period, may be extended where force majeure prevented the Belgian parent from complying with it (Brussels Court of Appeal, 24 October 2019, Case No. 2019/FQ/3, § 7). A judgment of the French-speaking Family Court of Brussels of 12 August 2022 (Case No. 21/6856/A) further accepted that elements of the file unambiguously establishing the will of the deceased Belgian parent to claim Belgian nationality for the child may be treated as equivalent to a declaration.
The factual scenarios giving rise to extension claims are varied. In addition to the death of the Belgian parent, they include:
- situations where the declaration was materially impossible or made very difficult (geographical distance, armed conflict, closure or inaccessibility of the consular post, parent's state of health);
- situations of mere oversight or unawareness of the rule by the Belgian parent, while the family otherwise displays a continuous and effective link with Belgium;
- situations where the declaration was preceded by very lengthy administrative steps, such as the recognition of filiation, sometimes delayed by inaccurate guidance given by the Belgian diplomatic or consular post abroad;
- situations where the Belgian parent had lost Belgian nationality and only reacquired it after the expiry of the five-year period, thus being unable, during part of the deadline, to file the declaration.
All these situations must now be analysed in the light of Judgment No. 51/2026. By holding that the child cannot be deprived of any possibility of obtaining Belgian nationality on the basis of his or her Belgian parent's nationality where no declaration could be made within five years, and by anchoring this reasoning in the child's interest and in the principle of equality, the Court provides an assessment framework that is transposable to these closely related scenarios.
This new factor must be integrated into the argumentation of pending appeals and new applications. It invites the courts to examine the child's actual situation, the family's link with Belgium and the reasons why the declaration could not be made within the deadline, rather than applying the five-year rule in a purely formal manner.
Practical implications
For the families concerned, the judgment opens several avenues:
- filing or pursuing an application for the attribution of Belgian nationality to a child born abroad to a Belgian parent who died within five years of the birth, by directly invoking the unconstitutionality identified;
- strengthening pending appeals seeking an extension of the five-year deadline, by relying on the constitutionally compliant reading set out by the Court;
- reviewing recently rejected files where the factual situation falls within the scope covered by the judgment or within analogous scenarios.
It is for the legislator, in a second stage, to amend Article 8, § 1, paragraph 1, 2°, b), of the Belgian Nationality Code in order to bring the provision into line with the Constitution.
Read :
- « Belgian nationality for children born in Belgium: the Constitutional Court strikes down discrimination based on parents’ residence »
- « I lost Belgian nationality: can I get it back from abroad? »
- « Article 10 of the Belgian Nationality Code: a key tool against statelessness for children born in Belgium »
Céline Verbrouck
Attorney at the Brussels Bar
Specialised in immigration law, nationality law and international family law
www.altea.be
+32 2 894 45 70