Author
Certain family members of beneficiaries of international protection enjoy the right to join the beneficiary in Belgium trough family reunification.[1] The legal basis for family reunification is Article 10 of the Aliens Act.
In 2018, UNHCR and the Federal Migration Centre (Myria) published a report illustrating the main obstacles that beneficiaries of international protection currently face in the context of family reunification. These include:[2]
- obstacles encountered in submitting a visa application;
- the narrow definition of the family members of a beneficiary of international protection and the long and uncertain procedure for humanitarian visas;
- the strict conditions for family reunification where the application could not be submitted within one year of recognition or granting of international protection status;
- the complexity of proving family ties and regular recourse to DNA testing;
- the difficulty of financing the costs of family reunification; and finally, family reunification in the event of a humanitarian crisis.
Following the outbreak of the Covid-19 pandemic, applicants for family reunification faced additional difficulties meeting the conditions as consulates and visa posts were temporarily closed and people were prevented from introducing their application in time. The Immigration Office announced it would take into consideration these exceptional circumstances having prevented the submission of applications at a time when a family member had a right to family reunification or was required to meet less stringent conditions. It also announced it would take into consideration the possible impact of the health crisis on the situation of the sponsor, since a temporarily unemployed sponsor may momentarily have difficulty providing the proof of a stable, regular and sufficient income, housing or insurance. The period of validity of certain certified documents (for example civil status records) is prolonged. [3]
Eligible family members
Four categories of persons may join a beneficiary in Belgium.
- A spouse, equalled partner,[4] or registered partner;
- An underage and unmarried child;
- A child of age with a disability;
- A parent of an unaccompanied child with protection status.
In order to reunite with a spouse or equalled partner, certain conditions have to be fulfilled.[5] Both partners have to be over the age of 21, unless the union took place before arrival in Belgium, in which case the minimum age is reduced to 18. The spouse or equalled partner must come and live with the beneficiary in Belgium. Polygamous marriages are excluded, only one of the wives can join the beneficiary.[6] In practice an investigation to whether the marriage or equalled registered partnership is a marriage of convenience is often carried out. However this does not suspend the family reunification procedure. If the investigation shows there is a marriage of convenience, the Immigration Office can revoke the right to residence.[7]
The conditions for a registered partner are largely similar but require proof of a “stable and lasting” relationship.[8] Evidence of this can either be a common child, having lived together in Belgium or abroad for at least 1 year before applying or proof that both partners have known each other for at least 2 years and have regular contact by telephone or have met at least 3 times, amounting to a total of at least 45 days, during the 2 years preceding the application. The registered partners also have to be unmarried and not be in a lasting relationship with another person.
Underage children wishing to join their parents residing in Belgium as a beneficiary of international protection have to be unmarried and set to live under the same roof as the parents. If a child wishes to join only 1 of his parents in Belgium, the situation depends on the custody arrangement. In the event of sole custody, a copy of the judgment granting sole custody will have to be provided. If custody is shared, consent of the one parent that the child can join the other parent in Belgium is required.
Children of age with a disability or handicap have the possibility to join their parent(s) with international protection if they provide a document certifying their state of health. In order be considered disabled, the person concerned has to be unable to provide for his/her own needs as a result of the disability. The child also has to be unmarried and come and live with the beneficiary.
If the beneficiary of international protection is an unaccompanied child, the beneficiary’s parents can enter Belgium through the family reunification mechanism.[9] Until April 2018, family reunification with an unaccompanied minor was only possible when he or she was recognised as a refugee or was granted subsidiary protection status.[10] Moreover, the family reunification with the parents (and/or the minor siblings) had to intervene before the unaccompanied minor turned 18.
However, since the CJEU ruled in A and S v Staatssecretaris van Veiligheid en Justitie,[11] that the date of introduction of the asylum application of the unaccompanied minor is decisive for the right to family reunification, the Immigration Office has adapted its practice and allows the benefit of family reunification even if the unaccompanied minors turned 18 during the asylum procedure. The parents must however apply for family reunification within 3 months after the child has obtained the protection status. The Immigration Office extended this practice to beneficiaries of subsidiary protection.[12]
To establish family ties, Belgian law foresees a cascade system.[13] Ties are preferably proven by official documents, other valid proof or an interview or supplementary analysis (i.e. a DNA test). If an applicant is unable to produce official documents, the inability has to be “real and objective”, meaning contrary to the applicants own will, such as Belgium not recognising the country concerned, an inability to enter into contact with the authorities or a specific situation in the country of origin such as not functioning authorities or authorities that no longer exist. If this inability is established, the Immigration Office can take other valid proof into account.[14] In the absence of other valid proof, the Belgian authorities may conduct interviews or any other inquiry deemed necessary, such as a DNA test.[15] In practice the Immigration Office makes little use of this cascade system and will often require the expensive DNA-testing.[16]
Deadlines and material conditions
Beneficiaries of international protection are exempt from certain conditions such as adequate housing, health insurance and sufficient, stable and regular means of subsistence. However, if the application for family reunification is submitted more than 1 year after recognition of the status, these conditions will have to be fulfilled. This however does not apply to parents of unaccompanied children wishing to join them in Belgium.[17]
Family reunification procedure
The normal procedure requires the applicant to apply for family reunification at the Belgian embassy or consulate in the country where the applicant resides. In practice, family members of recognised refugees and subsidiary protection beneficiaries, alternatively, can submit the application form in any Belgian embassy which is authorised to apply for long-term visa applications. At the Belgian embassy they have to apply for a D visa for family reunification and provide certain documents to complete the file.
All applicants require a valid travel document (national passport or equivalent), a visa application form (including proof of payment of the handling fee of €180), a birth certificate, a copy of the beneficiary’s residence permit in Belgium, a copy of the decision granting protection status, a medical certificate no more than 6 months old and an extract from the criminal record.
In addition to these standard documents, a spouse will have to provide a marriage certificate. A registered partner has to provide a certificate of registered partnership and addition proof of the lasting relationship, such as photos, emails, travel tickets, etc. For minor children applying to reunify with a parent a copy of the judgment granting sole custody will have to be provided. If custody is shared, consent of the one parent that the child can join the other parent in Belgium is required. Where the child is only of the spouse/partner a marriage certificate, divorce certificate or registered partnership contract is required.
Children over 18 with a disability have to provide a medical certificate.
All foreign documents have to be legalised by both the foreign authorities that issued them and the Belgian authorities. Documents provided in another language than German, French, Dutch or English will have to be translated by a sworn translator.
After submitting all the certified and translated documents, the file is complete and the applicant will receive proof of submission of the application (a so-called “Annex 15quinquies”). The file then gets sent to the Immigration Office for examination. When the proof of submission is delivered, a 9-month period starts during which the Immigration Office must take a decision on the visa application. This period can be prolonged with a 3 month extension twice in the event of a complex case or when additional inquiries are necessary.
If the Immigration Office decides that all conditions are fulfilled it will issue a positive decision and the family member will receive a D type visa mentioning “family reunification”. This visa is valid for 1 year and allows the applicant to travel to Belgium via other Schengen countries or stay in another Schengen country for a maximum total duration of 3 months within a period of 6 months.
In the context of the Covid-19 pandemic, during which the consulates were/are prevented from issuing visa and the beneficiaries from travelling, the Immigration Office has announced that:
- The period of validity of the decisions of the Immigration Office is automatically extended by 3 months. Until further notice, a decision is therefore valid for 9 months (6 months + 3 months). As a result, diplomatic or consular posts that received positive decisions but were unable to enforce them due to travel restrictions are allowed to issue the visa if the decision was made less than 9 months ago;
- People having received a D type visa but who were prevented from travelling before the expiry of this visa, can apply for a new visa at the competent Belgian diplomatic or consular post, which can issue the new visa automatically under certain conditions.[18]
[1] More practical information can be found in: Myria, Le regroupement familial des bénéficiaires de protection internationale en Belgique, September 2019, available in French at: https://bit.ly/2TFM9T1.
[2] UNHCR and Myria, ‘Le regroupement familial des bénéficiaires d’une protection internationale en Belgique’, June 2018, available in French at: https://bit.ly/2GdKJIF.
[3] More information on the webpage of the Immigration Office: http://bit.ly/391S4sg.
[4] An equalled partner is a partnership registered in certain countries. These countries are Denmark, Germany, Finland, Iceland, Norway, the United Kingdom and Sweden. Article 12, Royal Decree of 17 May 2007 establishing the implementation modalities of the law of 15 September 2006 changing the law of 15 December 1980 on the regarding the entry, residence, settlement and removal of aliens, 31 May 2007, 2007000527, 29535.
[5] Article 10(1)(4) Aliens Act.
[6] Children from a polygamous marriage are not excluded if they meet the general conditions: Constitutional Court, Decision No 95/2008, 26 June 2008.
[7] Articles 11(2) and 12-bis Aliens Act.
[8] Article 10(1)(5) Aliens Act.
[9] Article 10(1)(7) Aliens Act.
[10] Art. 10 of the Law of 15 December 1980 regarding the entry, residence, settlement and removal of aliens.
[11] CJEU, Case C-550/16, A and S v Staatssecretaris van Veiligheid en Justitie, 12 April 2018
[12] Myria, Contact meeting, 16 May 2018, , available at: www.myria.be, para. 6-9.
[13] Circular of 17 June 2009 containing certain specifics as well as amending and abrogating provisions regarding family reunification, Belgian Official Gazette, 2 July 2009.
[14] Article 12-bis(5) Aliens Act.
[15] Article 12-bis(6) Aliens Act.
[16] UNHCR and Myria, ‘Gezinshereniging van begunstigden van internationale bescherming in België: vaststellingen en aanbevelingen’, June 2018, available in Dutch at: www.myria.be, p.19.
[17] Constitutional Court, Decision No 95/2008 of 26 June 2008.
[18] More information on the webpage of the Immigration Office: http://bit.ly/391S4sg