In Judgment No. 38/2026 of 2 April 2026, the Belgian Constitutional Court strikes down a restrictive reading of Articles 40ter, § 2, paragraph 2, 1°, and 42, § 1, paragraph 2, of the Law of 15 December 1980. When assessing the means-of-subsistence requirement for family reunification with a "sedentary" Belgian, the Immigration Office had been taking into account only the Belgian sponsor's personal income. The Court holds that this interpretation violates Articles 10 and 11 of the Constitution, read in conjunction with Article 8 of the European Convention on Human Rights.
1) The facts: two refusals based solely on the sponsor's income
Two registered cohabiting partners of Belgian nationals had filed family reunification applications. In both cases, the Immigration Office refused a residence permit on the ground that the Belgian reference person did not, on their own, have sufficient means of subsistence. The applicant partner's income was entirely disregarded.
The Council for Alien Law Litigation (CCE), hearing both appeals (Judgments Nos. 318,729 and 318,724 of 17 December 2024), observed that in family reunification cases involving third-country nationals, the origin of resources is not considered decisive, particularly in light of the case law of the Court of Justice of the European Union. It referred a preliminary question to the Constitutional Court on the compatibility of this difference in treatment with the principles of equality and non-discrimination.
2) The Court's reasoning: an unjustified difference in treatment
The Court first recalls that preventing a person from living with family members constitutes an interference with the right to respect for family life (Article 8 ECHR). Any restriction must be prescribed by law, meet a pressing social need, and remain proportionate.
The Court accepts that the legislature may impose stricter conditions on "sedentary" Belgians than on non-Belgian EU citizens. It had already upheld this differential treatment in Judgments Nos. 121/2013 and 149/2019, noting that the number of Belgians eligible to sponsor family members had significantly increased, that access to Belgian nationality had been facilitated, and that most family reunification cases involved Belgians of immigrant origin.
However, the Court holds that this reasoning cannot be extended to the comparison between family reunification with a Belgian and family reunification with a third-country national. It observes that a significant number of Belgian sponsors only acquired Belgian nationality later in life and that, in many cases, their family members are already present in Belgium. There is therefore no basis for asserting that a Belgian sponsor's partner's resources would be inherently less stable than those taken into account in other family reunification scenarios.
3) The anchor point: CJEU case law
The Constitutional Court expressly relies on the case law of the Court of Justice of the European Union concerning Article 7(1)(c) of Directive 2003/86/EC. In the judgment X of 3 October 2019 (C-302/18), the CJEU clearly stated that it is not the origin of the resources that is decisive, but rather their durable, regular and sufficient character, taking into account the individual circumstances of the person concerned. Judgment 38/2026 transposes this principle to family reunification with a sedentary Belgian.
4) The ruling: an interpretive judgment
The Court holds that Articles 40ter, § 2, paragraph 2, 1°, and 42, § 1, paragraph 2, of the Law of 15 December 1980, violate the Constitution and Article 8 ECHR insofar as they are interpreted to mean that only the Belgian sponsor's personal means of subsistence may be taken into account. It adds that those same provisions are constitutional if interpreted as also allowing the partner's means of subsistence to be considered.
This is therefore an interpretive judgment. The legislative text is not struck down; it is its reading that is corrected.
5) Practical implications
In family reunification cases with a Belgian (at least in the registered-partner scenario examined by the Court), the Immigration Office and the Council for Alien Law Litigation can no longer disregard the applicant's income solely because it does not originate from the sponsor. Practitioners will want to carefully document the stability, regularity and actual availability of the partner's resources: employment income, contracts, pay slips, bank history, and the concrete allocation of the household's expenses.
The needs assessment under Article 42, § 1, paragraph 2, must also be reconsidered in light of this judgment. Refusing to take into account the partner's resources when they exist and effectively contribute to the household's maintenance amounted to an unjustified rigidity. The Constitutional Court puts an end to that approach, without creating an automatic right to family reunification: it requires a realistic, individualised assessment that respects the fundamental right to family life.
Céline Verbrouck
Attorney at the Brussels Bar
Specialised in immigration law, nationality law and international family law
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