A law modifying the Belgian Nationality Code was adopted and published in the Belgian Official Gazette on 2 July 2018. It entered into force on 12 July 2018.
It introduces new important developments.
1. New features for former Belgians and Belgians living abroad
Article 17 of the Code of Belgian Nationality (hereinafter ‘CNB’) is reinstated and provides for the re-acquisition of Belgian nationality for ‘the person acting in good faith to whom Belgian nationality has been erroneously granted and who has, consistently for at least ten years been considered Belgian by the Belgian authorities’. It is aimed at two categories of people, provided that they are acting in good faith:
- The Belgian who has lost his nationality without his knowledge and who, notwithstanding this loss, was considered Belgian for at least 10 years by the Belgian administrative authorities;
- Foreign nationals to whom Belgian nationality has been recognised or granted in error and who have been considered Belgian by the Belgian authorities for at least 10 years.
The reacquisition request can be made via a consular post abroad within a period of one year, starting from the date on which a Belgian authority definitively contests the possession of Belgian nationality (or at the age of 19 years if the person was a minor at the time of the termination of the filiation). It should be noted that the time taken by the administration to decide the matter is not counted. Furthermore, the validity of acts and rights acquired prior to the acquisition of Belgian nationality for which Belgian nationality was required cannot be contested for the sole reason that the declarant did not have this nationality.
Another piece of good news is the end to the loss of Belgian nationality for Belgians born abroad who have not subscribed to a declaration of retention of nationality before the age of 28 in the event that the person concerned has had a Belgian passport or identity card issued between the ages of 18 and 28 (Article 22,(1)(5) CNB). The request for the issuance or extension of a passport or identity card is therefore equivalent to the declaration of retention.
Finally, the recovery conditions have been relaxed for people who were unable to subscribe to a declaration of retention of their Belgian nationality between 18 and 28 years old on the basis of Article 22(1)(5), (Article 24(3) CNB). In addition to being able to submit their request for recovery from abroad, the discretion of the public prosecutor, which already exists in the old version for people who have renounced Belgian nationality, is extended to this category of people. In that the conditions of legal and uninterrupted residence and of unlimited residence are not met at the time of the request, the public prosecutor may decide not to issue a negative opinion after having assessed the circumstances in which the declarant has lost his or her nationality and the reasons for which he or she wants to recover it.
It is however regrettable that the legislator has omitted to re-introduce the possibility for people who have renounced their nationality to submit the request from abroad, and to specify that the terms of renunciation cover both express renunciations and implicit renunciations by acquisition of a foreign nationality, as has been recognised by the prosecution and the family court of the Brussels court of first instance.
Indeed, given that the public prosecutor has more flexibility in such situations, in order to give real effectiveness to Article 24(2), it should have also been made necessary to allow persons who have expressly or implicitly waived their Belgian nationality, to regain it from abroad.
This modification would have made it possible to protect many former Belgians who still feel deeply attached to Belgian nationality. Indeed, for these people, Belgian nationality is part of their identity, however it is currently very difficult for them to recover it in view of the administrative procedures to come and settle permanently in Belgium, when they have built their life abroad. This deserves to be the subject of a future corrective law.
2. The declaratory effect of the residence of EU citizens and refugees
Legal residence prior to application now expressly includes the principle of the declaratory effect of the application for residence of European Union citizens and members of their families, as well as of the application for asylum. All residence documents obtained by the persons concerned during the processing of their application for residence must henceforth be taken into account in the assessment of this condition (Article 7bis(2)).
3. Granting of Belgian nationality for children born in Belgium
The new Article 11bis(5) provides that "the public prosecutor may issue a negative opinion on the granting of Belgian nationality if the declaration has a purpose other than the interests of the child to be granted Belgian nationality or where the basic conditions, which it must set out, are not met".
Article 11bis(8) provides for a special procedure in the event of a lack of consent from one of the parents, allowing the other parent to make a declaration. In this case, the registrar communicates the declaration to the public prosecutor’s office and the Immigration Service. It is the family court that decides on the approval of the declaration, on the advice of the public prosecutor and after having heard or summoned the parents or adoptive parents. "If the refusal of consent could be considered to be abusive and that the declaration has no other aim than the interest of the child, Belgian nationality should be granted. The decision must be justified".
4. Declaration of nationality and evidence of integration
Under Article 12bis, the definition of evidence of integration through the monitoring of an integration course has been adapted to the terminology used by different communities and it has been added that where an examination forms part of the course, the result must be successful.
In addition, from now on, the monitoring of an integration course in a linguistic region other than that in which the nationality application is submitted will be valid in order to prove linguistic integration. The inconsistency between national and regional linguistic integration is thereby corrected.
5. Consular certificates and birth certificates
Regarding the condition of production of a birth certificate, the new law provides that if the person was born in a country appearing on a list laid down by royal decree, it is appropriate to provide an equivalent document issued by the embassy or consulate, or, failing that, an affidavit issued by the justice of the peace or, failing that, a sworn statement. If, on the other hand, the person was born in a country not appearing on the list of the royal decree, they are not entitled to submit an equivalent document issued by an embassy or a consulate. In this case, only the notarial act issued by a justice of the peace, and failing that, a sworn statement are accepted.
The new Article 19 CNB provides for the assimilation of the emancipated minor to full age. This applies both to persons of exceptional merit and to stateless persons.
7. New procedures
Finally, some procedural and administrational changes have been made:
- Judicial decisions will henceforth be communicated by registered missive;
- The Code of Belgian Nationality has been adapted in line with the new provisions in matters of civil status (following the creation of the database of civil status certificates (BAEC) (Articles 11bis, 15, 22(4) 23, 23/1(3), 23/2);
- Belgian nationality will no longer be transcribed in the registers, but the registrar or the career head of the consular post will issue a nationality certificate (Article 8, 9, 11bis, 15, 22(4));
In the event of forfeiture of Belgian nationality, the registrar will draw up an deed of forfeiture (Article 23, 23/a(3) and 23/2).
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