procedure too complex

Legal proceedings involving foreigners too complex in Belgium

The European Court of Human Rights once again condemned Belgium on 18 February 2020 (Makdoudi v. Belgium, Application No. 12848/15) in matters of foreigners’ rights.

It considered that the deportation of a Tunisian who had a Belgian daughter, without concrete assessment of his personal situation, constituted a violation of Article 8 of the European Convention on Human Rights (ECHR) which enshrines the right to respect for private and family life.

This fact was produced by the complexity of the procedures. In fact, during the process for this foreigner, different requests for stays, different decisions and different types of administrative appeals have arisen. However, none of which have compelled the administration or a judge to consider the impact of deportation on his family life. Indeed, formal procedural grounds have systematically prevented the family-related factors of this foreigner from being taken into account before ordering his return.

The Strasbourg Court considers that purely procedural grounds cannot, however, prevent a State from assessing the existence of family life and the impact of a deportation on it. Article 8 ECHR requires that this balance of interests (private interests and those of society) be carried out.

Despite the particularities of an administrative cassation appeal to the Council of State for procedures relating to the right of residence, the European Court considers that the Council of State should have carried out a concrete assessment of the risk of violation of Article 8 of the Convention when it gave its ruling.

This case invites us to recall that the Grand Chamber of the European Court had already condemned Belgium in 2016 for violation of Article 8 in the Paposvhili v. Belgium case of 13 December 2016 (Application No. 41738/10) after observing that the Belgian authorities had not assessed, for formal reasons, the degree of dependence of a seriously ill foreigner on his family in Belgium.

Finally, we draw attention to the fact that an analysis was published in 2020 by the NGO Convention on the Rights of the Child in collaboration with Defence for Children International (Belgium), to equip legal professionals as far as possible to be able to mobilise the concluding observations of the United Nations Committee on the Rights of the Child on the implementation in its territory of the Convention on the Rights of the Child (of 7 February 2019). These concluding observations can indeed be a valuable resource when representing a child, an entire family or parents in court. They are accessible via the following link.

Céline Verbrouck 
ALTEA  Lawyer
Certified specialist in foreign nationals and private international family law

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