For several months now, many practitioners—lawyers and NGOs—have been observing a worrying practice by the Belgian Immigration Office (Office des étrangers): when a person submits an application for residence on medical grounds (Article 9ter), the administration increasingly refuses to include family members within the same protective framework and instead directs the spouse (or other close relatives) to file a separate application under Article 9bis.
This approach raises serious concerns. It casts doubt on the legality of the practice and leads to a simple question: can we truly “protect” a seriously ill person while making the continuity of care incompatible with preserving their family life and essential support network?
A practice that undermines the humanitarian purpose of 9ter
The interpretation of Article 9ter cannot be reduced to a purely administrative and strictly individualistic approach. The aim of this provision is humanitarian: to effectively protect the health and dignity of seriously ill persons.
Yet a strictly individualistic practice narrows the scope of the medical regularisation pathway and deprives the right to health of its practical effect when it results in separating the patient from their natural caregiver or from their children.
Nowhere does the law require a separate application for the spouse. On the contrary, in practice the Immigration Office applies a single administrative fee logic under 9bis for married couples, which shows that a more flexible and coherent interpretation is possible when family unity is at stake.
The Grand Chamber’s guidance in Paposhvili v. Belgium
The European Court of Human Rights, sitting as a Grand Chamber, has reiterated that national authorities must conduct a rigorous and concrete assessment when removal affects a seriously ill person, and that the analysis is not limited to an abstract exercise: it must also be framed within obligations relating to family life (Article 8 ECHR).
This guidance is essential: if the assessment must take account of family ties and the lived reality surrounding illness, it is difficult to see how, in practice, an application based on medical vulnerability could be treated as if it could never concern the close family members who accompany, support, and make day-to-day care possible.
The separation between 9bis and 9ter becomes an artificial (and dangerous) boundary
Historically, Belgian law distinguished 9bis (exceptional circumstances) from 9ter (medical grounds). But that distinction cannot become a pretext for creating, in practice, a rigid and punitive boundary that disrupts family life and undermines the effectiveness of medical protection.
More broadly, this logic of “sealed-off tracks” between protection regimes produces arbitrary outcomes: it fragments pathways, multiplies procedural dead ends, and ultimately makes effective protection depend not on the human seriousness of the risk, but on the procedural “door” chosen. This is precisely the kind of compartmentalisation that is increasingly being challenged in practice.
A risk of circumventing fundamental safeguards (reminders from the 9ter White Paper)
The White Paper devoted to 9ter (LDH and partners) has for several years highlighted structural dysfunctions: excessive formalism, overly restrictive assessments, difficulties relating to reasoning and the effectiveness of the examination, and more generally an administrative approach sometimes disconnected from the purpose of protecting the human rights of seriously ill foreign nationals.
In this context, imposing family dissociation today adds an additional warning sign: protecting seriously ill persons is not a purely administrative accounting exercise. It requires a realistic, individualized, and respectful assessment:
- of the right to private and family life (Article 8 ECHR);
- of the prevention of serious interferences with physical integrity and dignity (in connection with Article 3 ECHR);
- of the principles of good administration and the duty to give reasons.
This issue forms part of a broader dynamic: the effectiveness of human rights is not theoretical. States must ensure a coherent, diligent, and humane handling of residence applications based on fundamental rights.
If you are concerned by a medical residence application (9ter) involving a spouse or children, it is essential to anticipate and strengthen the file: evidence of family ties, demonstration of the impact of those ties on continuity of care, and a reminder of the requirements of proportionality and individualized reasoning.
Further reading: our Altea newsflash on Sahiti v. Belgium (ECHR)
Céline Verbrouck
Attorney at the Brussels Bar
Specialized in Immigration Law, Nationality Law, and International Family Law
www.altea.be
+32 2 894 45 70