Brexit, belgian citizenship, lawful residence, primary residence, and european union law
In the wake of the Brexit, many British citizens legally residing in Belgium for a period of at least five years legitimately wish to apply for Belgian citizenship.
The most recent reform of the Belgian Citizenship Code (BCC) took effect on 1 January 2013. Its stated goal was to ensure that citizenship did not become a way of making immigration easier. The British have felt the full impact of this political agenda, a situation recently condemned by Jonathan Faull, a civil servant at the European Commission. His memorandum to the Vice-President of the European executive was reported on by Politico on Monday, 14 November 2016, and has since been relayed by other media outlets.
To have the right to apply for Belgian citizenship, a person must have their primary residence in Belgium during a period of lawful residence. However, both the notion of “primary residence” and that of “lawful residence” have been subject to varying interpretations where European Union officials are concerned, whether it be by municipal governments, who are tasked with determining whether citizenship applications should be filed, or by different courts charged with issuing opinions on citizenship applications. In the following paragraphs, an analysis of these two specific problem areas is proposed.
Article 1, § 2, point 1° of the BCC defines the concept of primary residence as “the place in which a person’s name is on the national register, the register of foreign nationals, or the waiting list”. However, as a consequence of different national and international legislation, the national register also includes information on European civil servants. As such, there is no basis for challenging their primary residence in Belgium as a result of their special status.
Neither is there justification for challenging the lawfulness of European Union officials’ residence as understood under the BCC. Indeed, Article 7bis, §2 of the Belgian Citizenship Code provides that a person is a lawful resident if he or she “been admitted or authorised for a stay of more than three months in the Kingdom, or authorised to take up permanent residence pursuant to the law on foreign nationals or the law on regularisation of stay.” However, European Union citizens who work for the European institutions necessarily have a right of residence, deriving from the law of 15 December 1980 on access to the territory, stay, establishment and removal of foreigners in foreigners. Furthermore, this right to residency is automatically granted as a result of both the Protocol on the Privileges and Immunities of the European Union and Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the Right of Citizens of the Union and their Family Members to Move and Reside Freely Within the Territory of the Member States.
In situations in which these issues were raised, favourable judgments have already been handed down by the Walloon Brabant Court of First Instance and the Brussels Court of First Instance.
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