Author
After arrival in Belgium, the applicant has to register in the municipality where he/she stays within the first 8 days of the arrival.[1] The applicant has to show the family reunification visa and will receive an Annex 15 temporarily covering stay in Belgium until a residence control. After a positive residence control, the municipality will register the applicant in the Aliens Register and issue an electronic A card valid for 1 year.
During the first 5 years, the A card will be renewed if the conditions for family reunification are still satisfied.[2] The person will have to request a new card every year between the 45th and 30th day before the expiry date of the residence permit.
The Immigration Office can review the situation every time an electronic A card has to be renewed, but also at any moment when the Immigration Office has well-founded suspicions of fraud or a marriage of convenience. If after a review the Immigration Office concludes the conditions are not fulfilled anymore, it can end the right to residence. This is only possible in one of the following situations:
- An applicant no longer fulfils the conditions for family reunification;
- The partners do not have an actual marital life anymore;
- One of the partners has concluded a marriage or registered equalled partnership with another person;
- One of the partners commits fraud;
- There is a marriage of convenience.
The Immigration Office then issues an Annex 14ter to leave the territory. However, before ending the right to residence, the Immigration Office has to take the duration of residence in Belgium, the existence of family, cultural and social ties in the country of origin and the solidity of the family bond into account.
If an applicant no longer lives with the person on which family reunification was based due to domestic violence the Immigration Office cannot end the right to residence. Rape, deliberate assault and battery and attempts to poison all fall under this exception as well.[3] Proof of domestic violence suffices, a conviction is not required. Psychological violence also suffices, but the Immigration Office requires more proof for this type of violence.
The fact that a parent and a child who has become of age don’t live together anymore, cannot in itself constitute a reason to end the residence permit of the parent or the child: the reality of a ‘family life’ between a parent and a (adult) child does not necessarily require that they live together. The Immigration Office needs to investigate the existence of affective ties or at least the intention to have or re-establish contacts. This follows from the recent CJUE rulings of 1 August 2022 (joint cases C-273/20 & C-355/20 and C-279/20). The Immigration Office has confirmed that it considers affective ties in case parent and child do not live together.[4]
An applicant can lodge a suspensive annulation appeal with the CALL against the revocation of the right to residence by the Immigration Office within 30 days. The municipality will then issue an Annex 35. This is a temporary right to residence that is monthly extended for the duration of the appeal. In the absence of an appeal, the applicant’s residence in Belgium is unlawful.
If the person still fulfils the conditions for family reunification after 5 years, the right to residence becomes unlimited in duration. The person concerned has to apply for an electronic B card at the municipality during the duration of his electronic A card. If the applicant still fulfils the conditions, he/she receives a definitive, unconditional and unlimited right to residence. The municipality will issue an electronic B card valid for 5 years.
If the applicant does not satisfy the conditions anymore, a new right to residence of limited duration will be issued if the person concerned has sufficient means of existence not to become a burden to the State, has health insurance and poses no threat to public order or security.
Exceptionally the Immigration Office can end the right to residence in the event of fraud or a marriage of convenience.
This procedure is slightly different for parents of an unaccompanied child. Article 13 of the Aliens Act contains the modalities for obtaining an unlimited right to residence after 5 years. Added to the usual condition of continuously satisfying the conditions for family reunification, the applicant will also have to prove that he/she possesses stable and sufficient resources. If after 5 years the applicant does not have stable and sufficient resources, he/she can ask that the limited duration (the electronic A card) is extended, but only for as long as the child is a minor. When the child become of age, the Immigration Office will investigate the personal situation of the applicant and may still prolong the duration of the right to residence.[5] However, the practice of ending the residence of a parent of a beneficiary of international protection that has become of age seems to be contrary to be contrary to the recent rulings of the CJUE of 1 August 2022 (joint cases C-273/20 & C-355/20 and C-279/20).
Resources are considered sufficient when they are 120% of the living wage of the category ‘person with a dependent family’.[6] Currently this amounts to € 1.969,00 per month. The Constitutional Court ruled that as soon as the threshold is reached, the Immigration Office is not allowed to further investigate the exact amount of resources.[7] The resources also have to be stable, meaning interim jobs, trial work and temporary jobs are often refused. Even if the applicant is unable to prove stable and sufficient resources, the Immigration Office is not allowed to automatically refuse the unlimited right to residence but is required to first make an analysis of the needs of the family.[8] Based on said analysis, the Immigration Office can adjust the threshold.
[1] Circular of 21 June 2007 on amendments to the rules regarding residence by foreigners after the entry into force of the Law of 15 September 2006, Belgian Official Gazette, 4 July 2007.
[2] Article 13(3) Aliens Act.
[3] Articles 375, 398-400, 402, 403 and 405 Penal Code.
[4] Website of the Agentschap Integratie en Inburgering: http://bit.ly/3nMsGkK
[5] Circular of 13 December 2013 on the application of the articles of the Aliens Act. These were interpreted by the Constitutional Court in Decision No 121/2013 of 26 September 2013.
[6] Article 10(5) Aliens Act.
[7] Constitutional Court, Decision No 121/2013, 26 September 2013.
[8] Article 12-bis(2) Aliens Act.