The loss of Belgian citizenship often feels like a real injustice, with former Belgians feeling dispossessed of part of their identity. These former Belgians can try to get their nationality back via the recovery procedure. However, the impact of such a procedure is limited since it only applies to the individual person and, for the moment, does not have an automatic retroactive effect, which can have significant consequences, especially for the nationality of any children.
- Loss of citizenship and prohibition of dual citizenship before 2008
Before April 2008, Belgian law prohibited dual citizenship. Facing societal changes, Belgium recognized that such a rule was no longer in phase and repealed this article of the law. This repeal, however, did not allow former Belgians to get their nationality back without a recovery request.
In November 2021, the Brussels Family Court was seized with the fate of a former Belgian citizen, who became Canadian in 2002 and thus lost her Belgian citizenship (pursuant to Article 22 of the Belgian Nationality Code at that time). The applicant wanted to regain her Belgian citizenship. The General Court considered that, although the right to citizenship is a prerogative specific to each Member State, when the loss of Belgian citizenship also entails the loss of European citizenship, an analysis under European law is necessary, in particular with regard to the measure's principle of proportionality in relation to the legitimate objective pursued. The Court found that repeal of the prohibition of dual citizenship in 2008 was sufficient to conclude that the application of Article 22 did not fulfill, or no longer fulfilled, a legitimate purpose. In addition, the General Court added that since this loss of nationality operated automatically and, by definition, without nuance, it was arbitrary and thus, in any event, contrary to Union law. In this context, the Court concluded that Article 22 of the Belgian Nationality Code could not lead to the loss of Belgian citizenship for the applicant, so she was still (and had always been) Belgian (CFI. Brussels, 12 November 2021, Case 13/5399/B).
- The loss of Belgian citizenship at the age of 28 in the absence of a declaration of retention of citizenship
Before 2018, Belgians born abroad wishing to maintain their Belgian citizenship had to declare their desire to retain this citizenship to the embassy before the age of 28. Since 2018, they only need to order a Belgian passport or identity card between the ages of 18 and 28 to maintain this nationality.
In November 2023, the Brussels Family Court was seized in the context of a loss of Belgian citizenship at the age of 28 due to the absence of a declaration of retention of citizenship. The applicant asked the Court to declare the absence of loss of nationality on the basis of European law. In application of the Court of Justice of the European Union (CJEU) case law, the General Court considered that it was necessary to conduct an analysis with regard to the European principle of proportionality. Since the Belgian legislation was amended in favor of Belgians who had ordered a passport before the age of 18, precisely because of the disproportionate consequences that this rule could incur, the Court concluded that the rule was disproportionate. The General Court added that the recovery procedures currently provided for by Belgian law applied only for the future, which did not respect the CJEU's case law, which considers that citizens of the Union must be offered the possibility of retroactive recovery. The Court then concluded that Article 22 of the Belgian Nationality Code should be dismissed, so the applicant was still Belgian (T.PI. Brussels, 24 November 2023, Case 22/5888/B, unpublished.).
These two decisions deserve to be applauded and should help to advance the situation of former Belgians neglected by the successive reforms of the Belgian Nationality Code.
Céline Verbrouck
Associate Lawyer at Altea
Specialist in Immigration Law and Private International Family Law