Author
There are multiple systems for receiving the Belgian nationality available for aliens. The main system is named “declaration of nationality”, whereas an exceptional system named “naturalisation” is also available for certain categories of aliens. Apart from those to mechanisms of ‘acquiring the Belgian nationality’ (verkrijging van de Belgische nationaliteit/acquisition de la nationalité belge) there is a third mechanism of ‘granting the Belgian nationality’ (toekenning van de Belgische nationaliteit/attribution de la nationlité belge), which is the result of an almost automatic procedure mostly used for minors who receive citizenship by descent, after adoption or because they were born in Belgium.
On 31 December 2022, some changes were made to the Code of Belgian nationality. Some significant changes are the following:
- The formulation of article 10 is altered in the sense that a child born in Belgium who does not have another nationality, automatically has the Belgian nationality without first having to be recognised as stateless;
- A Central Authority for nationality is constituted within the Federal Public Service (FPS) Justice. If a local officer of a municipality has doubts about the application of the Code of Belgian nationality, it can ask for a non-binding advice of this Central Authority, that gives advice within 6 months (delay which can be prolonged with another 6 months).
Legal discussions exist on the application of article 10 on Palestinian children born in Belgium. According to one vision, children from Palestinian parents born in Belgium have the Palestinian nationality, whereas others claim it is impossible for them to receive Palestinian nationality because Palestinian legislation on this matter is non-existent.[1] Legal case-law on this matter is inconsistent, and a ruling of the Court of Cassation is expected. On the basis of the second point of view, article 10 has indeed been applied to children from Palestinians born in Belgium. In 2023, the Immigration Office has sent 55 letters to local administrations who had granted the Belgian nationality in such cases, stating that these children have the Palestinian nationality and asking to change the nationality granted to these children. The federal Ombudsman has intervened, stating that the Immigration Office is not legally competent to instruct local administrations on the matter of nationality, this competence being reserved to the Central Authority for nationality or the public prosecutor.[2] In a reaction, the Secretary of State has stated that the letters do not instruct local administrations in these cases, but only provides information and advice, local administrations remaining exclusively competent to take the final decision.[3] However, the federal Ombudsman finds that the Immigration Office has composed these advisory letters in the same way as its (binding) instructions to local administrations in other matters concerning asylum and migration, and thus created confusion and chaos among local administrations, some communes having decided to ignore the letter whereas others have withdrawn the Belgian nationality of the persons involved. The Ombudsman advises the Immigration Office to stop sending these letters and to contact local administrations having received such a letter, to inform them that it does not dispose of any advisory competence in this matter and the received letter should not be considered.[4]
In 2022, 48,482 aliens have acquired Belgian citizenship.[5] This represents an increase of 24% compared to 2021 (during which 39,448 aliens acquired Belgian citizenship) and is one of the one of the first steep peaks since 2000-2002.[6] Provisional data on 2023 indicate that this trend continues, with Belgian citizenship being granted to 46,414 persons between January and October 2023.[7]
Naturalisation stricto sensu
Naturalisation in the narrow sense is a concessionary measure granted by the House of Representatives which is only available under the cumulative conditions laid down in the Code of Belgian Nationality:[8]
- The applicant has to be 18 years or older;
- The applicant has to stay legally in Belgium;
- The applicant must have achieved great things which shed a favourable light on the Kingdom of Belgium.
This achievement (i.e. honoris causa) can be either scientific, sportive or cultural and social. Since the Law of 4 December 2012 amending the Code of Belgian Nationality, this possibility is not available anymore for recognised refugees or beneficiaries of subsidiary protection.[9] Legal stay implies a right to residence of unlimited duration.[10]
The second possibility to become a Belgian citizen by naturalisation in the narrow sense trough concessionary granting by the House of Representatives is only available for recognised stateless people who are 18 years or older and are staying legally in Belgium with a right to residence for unlimited time.[11]
The amount of ‘naturalisations’ as a means of receiving the Belgian nationality is steadily decreasing: it represented 0.6 % of all changes of nationality in 2022, compared to 23.2% in 2013. [12]
Declaration of nationality
Apart from the aforementioned possibilities for acquiring Belgian nationality, aliens can also resort to a system called “declaration of nationality”. This possibility is laid down in Article 12bis of the Code of Nationality and contains the following possibilities that are relevant for refugees and beneficiaries of subsidiary protection based inter alia on:
5 years of legal stay and integration
The first option requires 5 years of uninterrupted legal stay and proof of integration. In order to acquire Belgian citizenship trough this option, an applicant has to be 18 years or older, have stayed legally in Belgium as primary residence for 5 years uninterrupted and prove knowledge of languages, social integration and economical participation. Legal stay again implies a right to residence of unlimited duration.[15] Since July 2018, the duration of the asylum procedure leading to the recognition of refugee status (for recognised refugees) is once again considered when calculating the length of legal residence (5 or 10 years) preceding the declaration of nationality.
The Code of Belgian Nationality provides for several options in order to prove social integration, such as having completed vocational training of 400 hours, having followed successfully an integration course, having been employed or working as an entrepreneur for 5 years or having obtained a degree. The language requirement is automatically fulfilled if integration is proved. Documents that prove sufficient knowledge of the national languages are listed in Article 1 of the Royal Decree 2013.[16] In a judgment of the Court of Appeal in Ghent, the court decided that if one of the listed documents is provided, the actual knowledge of the languages is irrelevant.[17] In casu a woman unable to speak any of the three national languages, was able to provide the document referred to in Article 1(5)(a) of the Royal Decree, which led to the conclusion that she satisfied the language condition. The court thus confirmed that the Belgian legislator opted for a documentary system and is not allowed to test the language condition in a conversation.
Economical participation can be proven by either having worked as an employee for 468 days during the past 5 years, or by having paid social contribution during at least 6 quarters in the past 5 years as an entrepreneur. The duration of either obtaining a degree or completing vocational training, as mentioned in the social integration condition can be subtracted from the 468 days or 6 quarters. Examples of this subtraction are provided in the circular March 2013.[18] Specific details on the documents available to prove social integration, knowledge of languages and economic participation are provided for in the March 2013 Circular.[19]
10 years of legal stay
Article 12bis(1)(5) of the Code of Belgian Nationality refers to people who have legally stayed in Belgium for 10 years without a significant interruption. The first requirement is to have stayed in Belgium for 10 years and to have a right of residence of unlimited duration. The language requirement is explicitly mentioned as well. The new condition for this option is the fact that an applicant has to prove participation to life in the receiving society. There is no strict legal definition for ‘receiving society’ but the Circular of 2013 specifies that “receiving society” cannot be interpreted as meaning the society of people of the same origin as the applicant.[20] The circular also specifies that participation to life in the receiving society can be proven by any means. Some indications mentioned in the circular are school attendance, vocational training and participation in associations.
Procedure
The details of the procedure are laid down in Article 15 of the Code of Belgian Nationality. For each of these possibilities a registration fee of 150 € has to be paid. Proof of payment of the registration fee is an essential condition for the treatment of a file. After completing the payment, the applicant has to make the actual declaration at the municipal services of his/her current place of residence. The municipality might ask for the payment of another fee (stamp duties), the amount of which differs per municipality. The civil servant will issue a document proving that the applicant has made the declaration. Within 30 days of the making of the declaration, the civil servant has to check the file for incompleteness and if so, the civil servant flags the missing documents and gives the applicant 2 months’ time to complete the file. If the file is complete, the civil servant issues a certificate of receipt within 35 days of the declaration. If the file was previously incomplete, the civil servant only has 15 days to issue the certificate of receipt after the 2 months of extra time given to the applicant. In the event that the file would still be incomplete, the civil servant issues a document within 15 days stating that the application is inadmissible.
If the file is complete, the civil servant has 5 days to send the file to the prosecutor of the first instance courts, the Immigration Office and National Security. The prosecutor of the court of first instance has to notify the civil servant of receipt promptly. The prosecutor has 4 months after the issuance of the certificate of receipt to issue a binding advice on the declaration of nationality. Several situations can occur at this stage:
- The prosecutor does not respond: In the case where the court does not issue a certificate of receipt it is expected that the file did not arrive at the court, which leads to an automatic dismissal of the declaration of nationality. The applicant can appeal this by sending a registered letter to the civil servant asking that the file be resent to the court of first instance.
- The prosecutor issues a certificate of receipt but does not issue an opinion: The declaration is automatically accepted. The civil servant will notify the applicant and register the applicant. The applicant is a Belgian citizen from the day of registration.
- The prosecutor does not stand against the declaration: If the prosecutor does not stand against the declaration the civil servant notifies and registers the applicant. The applicant is a Belgian citizen from the day of registration.
- The prosecutor stands against the declaration: If the prosecutor stands against the declaration, it issues a registered letter to the civil servant and the applicant. The applicant can appeal this decision by sending a registered letter to the civil servant asking that the file be resent to the court of first instance.
In the two situations where the applicant can appeal to the court of first instance, the applicant has 15 days, starting from receiving the negative advice or the notification of the civil servant, to demand the civil servant to transfer the case to the court of first instance. The judge in the court of first instance will have to make a motivated decision on the negative advice and will hear the applicant. The registry of the court of first instance will notify the applicant of the decision.
A second appeal is available with the court of appeal for both the applicant and the prosecutor. The time limit is again 15 days. The procedure however is expensive and can take a long time. The court will rule after advice from the general prosecutor and the applicant will be heard. In the event of a positive decision the prosecutor will send the outcome to the civil servant. The civil servant will subsequently notify and register the applicant. The applicant is a Belgian citizen from the day of registration. In the event of a negative outcome, the procedure ends there.
Both appeal possibilities come with an additional registration fee, that amounts to 100€ since 2015.[21]
[1] For an extensive overview of this legal discussion, see: ‘Zijn in België geboren kinderen van Palestijnse origine Belg? Gemeenten en rechtbanken zijn bevoegd, niet DVZ’, 21 november 2023 (modified 1 February 2024), available in Dutch via https://bit.ly/3UdHXJa.
[2] Federal Ombudsman, ‘Advice 2023/06 to the Immigration Office: respect the legal compétences regarding nationality’, available in French at: https://bit.ly/3xlASwU.
[3] Chamber of representatives, Commission of Internal Affairs, Security, Migration and Administrative matters, 10 January 2024, available at: https://bit.ly/3TU3pm1, 14.
[4] Federal Ombudsman, ‘Advice 2023/06 to the Immigration Office: respect the legal compétences regarding nationality’, available in French at: https://bit.ly/3xlASwU.
[5] Data from Statbel, available at: https://bit.ly/3TA7QkI and https://bit.ly/4axysda.
[6] Myria, La migration en chiffres et en droits : le rapport migration 2023 sous forme de cahiers – Nationalité, available in French and Dutch at: https://bit.ly/3TAs2mC, table p.8.
[7] Data from Statbel, available at: https://bit.ly/4axysda.
[8] Article 19 Code of Belgian Nationality and Circular of 8 March 2013, published on 14 March 2013.
[9] Law of 4 December 2012 on changes to the Code of Belgian nationality in order to make obtaining Belgian nationality migration-neutral, 14 December 2012, 2012009519, 79998.
[10] Article 7bis(2)(1) Code of Belgian Nationality.
[11] Article 19(2) Code of Belgian Nationality.
[12] Myria, La migration en chiffres et en droits : le rapport migration 2023 sous forme de cahiers – Nationalité, available in French and Dutch at : https://bit.ly/3UJ92mm, table p.10.
[13] Article 12-bis(1)(2) Code of Belgian Nationality.
[14] Article 12-bis(2)(5) Code of Belgian Nationality.
[15] Article 7-bis(2)(1) Code of Belgian Nationality.
[16] Royal Decree of 14 January 2013 executing the law of 4 December 2012 on changes to the Code of Belgian nationality in order to make obtaining Belgian nationality migration-neutral, 21 January 2013, 2013009022, 2596.
[17] Court of Appeal Ghent, 2014/AR/1095, 24 December 2015.
[18] Circular of 8 March 2013 concerning certain aspects of the law of 4 December 2012 on changes to the Code of Belgian nationality in order to render the acquisition Belgian nationality migration-neutral, 14 March 2013, 2013009118, para IV A(1)(1.2)(3)(b.2).
[19] Circular of 8 March 2013, para IV A(1)(1.2).
[20] Circular of 8 March 2013, para IV A(1)(1.1)(4).
[21] Law of 28 April 2015 changing registration, mortgage and registrar fees in order to reform registrar rights, 26 May 2015, 2015003178.