1. Country Overview
This year, many immigration-law reforms have been adopted and some bills are still being debated.
The changes primarily concern labor migration, such as the gradual implementation of the single permit directive and shorter real-world processing times for issuing work permits or business cards.
With regard to asylum, measures to facilitate detention and access to personal data were adopted.
The Secretary of State for Asylum and Immigration has indicated that, in the future, he wants Europe and Belgium to have an immigration policy similar to that of Australia.
To avoid a situation similar to the one in Calais, important police operations are carried out in a transit point in Belgium (the Park Maximlien in Brussels) from which many migrants are waiting to travel to the United Kingdom. A large citizen solidarity network has developed in Belgium to host these migrants. For the past 6 months, approximately 500 migrants have been hosted every day in voluntary families.
In general, we note :
- Willingness to have more legal means to refuse or withdraw stays in case of delinquent behavior;
- Temporary stays extended as long as possible;
- Obligation to prove integration into Belgian society in many situations;
- Development of channels of communication between immigration services and social security services to facilitate deportations in cases of “social tourism”.
2. Legislative Changes
2.1 Urgent medical assistance in case of irregular stay
A law reforming the system of urgent medical assistance for individuals illegally residing in Belgium has been adopted. It entrusts the medical officer with oversight of healthcare bills for care provided as part of the system of urgent medical assistance for individuals residing in the country illegally. If the medical officer considers that there has been an abuse, the doctor who provided the care whose urgency is disputed can be punished and the government may refuse to pay the bills for the care.
Charity organizations and the College of Physicians have stated their opposition to this project. They believe that doctors will no longer dare to take the risk of treating a foreigner who is illegally residing in Belgium if there is a risk that they will not be paid for the care they provide.
The Constitutional Court upheld the legality of requiring the payment of fees for certain residence applications (family reunification, studies, humanitarian residence permit, etc.), but held that stateless persons should not be subject to the payment of a fee, as is the case for refugees.
b. Integration course
Flanders has had a structured and compulsory integration process in place since 2003. For Wallonia and Brussels, this process was adopted on 11 May 2017. The programs include :
- Information given on the rights and responsibilities of persons residing in Belgium;
- Citizenship training;
- Language classes, if needed;
- An individual assessment to evaluate the needs of foreigners in terms of housing, training, health, social and professional integration, etc.
The integration course is mandatory for foreigners under the age of 65 who have legally resided in Belgium for less than three years and who have a residence permit for a stay of more than three months.
Different categories of foreigners are exempted from following the programs, including citizens of the European Union, the European Economic Area and Switzerland and their family members; seriously ill foreigners; long-term residents who have already fulfilled the integration requirements for this specific status; foreigners who have graduated in Belgium; foreigners in Belgium under a temporary stay of up to one year; etc.
It is expected that the completion of the course will be regularly monitored, and a penalty system for non-compliance will likely be created in the future (fines, appeals, etc.).
c. Fines for improper appeal to the Aliens Litigation Council
The judge can now impose fines on applicants if their request is held to be “abusive”.
3. Immigration for Professional Reasons
3.1 Belgium’s delays in implementing the Single Permit Directive
Under pressure from the European Commission (appeal to the Court of Justice of the EU for incomplete implementation of the Single Permit Directive and threat of penalty), the federal government and the regions signed a Cooperation Agreement on 2 February 2019, but this agreement must still be approved by each legislature. It is therefore in progress.
3.2 Exceptions to the work permit requirement for some foreigners
- ministers and religious leaders from recognized religions, for activities pertaining to their ministry;
- personnel working for military burial commissions (commissions des sépultures militaires), who are responsible for maintaining grave sites where foreign soldiers are buried;
- workers registered in the Pool of Seafarers of the Belgian Merchant Marine;
- aircrews or transport crews hired on behalf of a foreign employer working in the area of land, sea or air transport, provided that their stay in Belgium does not exceed three consecutive months;
- sales representatives whose primary residence is abroad and who are visiting their customers in Belgium on behalf of foreign companies with no branches in Belgium. They must be in possession of the international identity card provided for under Article 10 of the International Convention for the Simplification of Customs Formalities signed in Geneva on 3 November 1923, and their stay in Belgium must not exceed three consecutive months;
- individuals who have come to Belgium on behalf of a foreign company to retrieve goods supplied by Belgian industry, provided that their stay in the country does not exceed three consecutive months;
- managers and researchers in the service of a coordination center enjoying the benefits provided for in Article 6 of Royal Decree No 187 of 30 December 1982 on the establishment of coordination centers or in the service of a company established in an employment zone enjoying the benefits provided for in Article 9 of Royal Decree No 118 of 23 December 1982 on the creation of employment zones, for the duration of their employment in the center or the company established in the employment zone;
- domestic staff accompanying tourists visiting in Belgium for a period not exceeding three consecutive months.
4. Immigration for Family Reasons
- A law has been adopted to allow civil registrars to refuse to register declarations of paternity when there is a suspicion of fraud (i.e. a declaration of paternity made in order to obtain a residence permit in Belgium). Suspicion may exist even in the case of proof of biological paternity. Our firm Altea has filed an appeal before the Constitutional Court for discrimination and disproportionate impact on the rights of the child.
- A law has changed the income requirement for family reunification applications by non-European students, providing that only the income of the student can be taken into account, whereas previously, the income of family members themselves could be taken into account.
- A law has extended the period during which the right of residence of family members of third-country nationals is temporary (and conditional), increasing it from three to five years.
- The Belgian Constitutional Court has upheld the legality of the conditions for family reunification for legal cohabitants. Unlike married couples, they must prove that they have been in a relationship for at least two years, or have lived together for at least one year, or have a child together. The Constitutional Court held that the legal provision is not disproportionate to the objective pursued and therefore complies with the right to equality and non-discrimination.
A reform referred to as a “mammoth reform” came into effect. In summary, we note the following changes :
- More types of procedures are processed in an accelerated way;
- It is no longer possible for the government to independently take decisions of inadmissibility;
- The deadline for appeals is shorter;
- There are still exceptions to the suspensive nature of an appeal (for example, if the government considers that the asylum application has been filed with the aim of delaying or preventing removal).
A draft bill aims to authorize home visits with the authorization of the investigating judge in order to arrest individuals staying illegally in Belgium. As this would constitute an exception from the principle of the inviolability of the home and respect for privacy, many citizens, associations, university professors, etc. oppose it.
- The detention of families in a closed center was reinstated, even though this had been abolished in the wake of several judgments against Belgium in the ECtHR. This reversal has been heavily criticized. The Secretary of State for Asylum and Immigration has attempted to justify this measure by saying that these centers would be “adapted” to families.
- The identification of Sudanese citizens for deportation. The Secretary of State for Asylum and Immigration invited a Sudanese delegation to come and identify migrants in closed detention centers to have them deported back to Sudan.
This made a lot of noise in the press because Sudan is a well-known dictatorship that is guilty of many serious crimes.
Belgium has always defended itself by claiming that the practice exists elsewhere in Europe, particularly in France, but in Belgium, there has been a great deal of pressure on the government.
After it was made public by an NGO that some of the Sudanese deported by Belgium had been tortured in Sudan, the Prime Minister suspended deportations and ordered a report on the general situation in Sudan to asylum authorities. After that, the government authorized deportations to resume under certain conditions, but judges then prohibited the resumption of this practice. Deportations of Sudanese nationals to Sudan are therefore still suspended, regardless of whether they have actually applied for asylum. This is due to the lack of an adequate procedure for evaluating the risks Sudanese nationals would face if they were deported to Sudan (Article 3 of the ECHR). According to the Belgian government, similar identifications of foreign nationals continue to take place for nationals from Nigeria, Togo, Morocco, Somalia, Cameroon, Iraq, Kurdistan, Kazakhstan and Afghanistan.
In the wake of Brexit, many European officials of British nationality have applied for Belgian citizenship. There is significant litigation pending before the courts as to whether or not they meet the conditions for obtaining nationality, due to the special nature of their stay and the fact that they do not work for companies linked to the Belgian social security system.
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