Cabinet d'avocats Altea
Cabinet d'avocats Altea
Slide One

Administrative and Constitutional Law
Immigration Law
international Family Law

Slide One

Administrative and Constitutional Law
Immigration Law
international Family Law

previous arrow
next arrow
Acquisition of Belgian citizenship

Declaration of Belgian citizenship in cases of children over the age of 5 years who are born abroad to a Belgian parent born abroad

The Code of Belgian Nationality provides that a child born abroad to a Belgian parent who is him or herself born abroad, is Belgian if the Belgian parent makes an ‘award declaration’ (déclaration d'attribution/toekenningsverklaring) claiming Belgian nationality on behalf of the child (Article 8, (1) (2)) within 5 years of its birth.

This time frame set out is inadmissible.

However, it is accepted by legal opinion (Ch.-L. CLOSET and B. RENAULD, Traité de la nationalité en droit belge, 3rd ed., Larcier, 2015, no. 260, pp. 153 and 157) and by court decisions in Belgium that such a foreclosure period can be extended in the situation of force majeure.

This was the case of a decision of the 3rd chamber of the tribunal of first instance of Liège of 10 October 2008 which entitled a father to make a declaration claiming Belgian citizenship for his child outside the 5-year period on the grounds that throughout this period, he had found it impossible to get to a Belgian embassy or consulate. In this case, this inability to travel arose from the occupation of the country of residence by a foreign power.

In a judgement of the 43rd chamber of the Brussels Court of Appeal of 24 October 2019 (JLMB 20/149, p. 1119) whereby a mother made an error in the understanding of the time frame (thinking she could still declare in the fifth year), the Court recalled the possibility for a judge not to grant Belgian citizenship directly to the child, but to grant an additional period to the parent in order to make the declaration of citizenship.

Although in this case the Court did not recognise force majeure in the one-off ‘mistake’ made by the mother, it nevertheless ordered the extension of the time limit for a period of 6 months, on this occasion, on the basis of the best interests of the child.

The Court thus correctly applies the principle of ‘the best interests of the child’, protected by the Belgian Constitution and by Article 3.1 of the New York Convention on the Rights of the Child which states that: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’.

It should therefore be remembered that circumstances of force majeure or the overriding consideration of the best interests of a child may, in certain circumstances, justify a referral to a judge in Belgium to request an extension to the 5-year period set out in the Code of Belgian Nationality for Belgian parents to make a declaration claiming entitlement for their child to be awarded Belgian citizenship.

However, it would be desirable for a correct application of the ‘direct effect’ of the principle of the best interests of the child, that the Code of Belgian Nationality be amended to clearly incorporate the specification that a Belgian diplomatic post abroad or a civil registrar in Belgium, which constitute the ‘administrative authorities’ referred to in Article 3.1 of the aforementioned New York Convention, must also themselves be able to directly grant an extension to the 5-year period in the circumstances which justify it.

Céline Verbrouck
ALTEA Partner
Specialist in foreign nationals and private international family law

ALTEA LAWYERS

Altea brings together lawyers highly specialised in:

- Constitutional and administrative public law;

- Foreign nationals and private international family law.

The firm strives to be accessible.

Altea covers many intertwining areas but the firm’s lawyers all have an interest in defending human rights.

ADDRESS AND CONTACT

Boulevard Louis Schmidt 56, 1040 Etterbeek - Belgium

+32(0)2 894 45 70

NEWSLETTER