Criteria and conditions

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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 2022, 5,552 applications for family reunification with a beneficiary of international protection in Belgium were introduced, covering 30% of all visa applications for family reunification. 4,963 decisions concerning applications for family reunification with a beneficiary of international protection in Belgium were taken, 66% of which were granted and 34% refused.[2] These data were not yet available for the year 2023 at the time of writing (April 2024).

Source: Immigration Office, Activity report 2022.[3]

In 2022, visa for family reunification with beneficiaries of international protection were mostly granted to Palestinian (1,304), Syrian (705), Turkish (297), Afghan (182) and Burundian (172) applicants. The number of Palestinian beneficiaries doubled for the second year running, and by 2022 they represented 40% of this category.[4]

In 2018, UNHCR and the Federal Migration Centre (Myria) published a report illustrating the main obstacles that beneficiaries of international protection face in the context of family reunification. These include:

• 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.

In a report of 2022, Myria established that the procedure of family reunification for refugee families is very complex and difficult, due to both the living circumstances of the applicants and to the Belgian procedure.[5] Issues with the Belgian procedure concern inter alia:

• the deadlines during which beneficiaries are exempt from certain material conditions, which are too short to be able to constitute a complete file for family reunification including all necessary documents in time;
• the application procedure, demanding that family members apply for family reunification at the Belgian diplomatic post in the country of origin;
• the lack of legislative framework on several aspects such as incomplete applications, the identity documents that can be considered etc.;
• the lack of information, advise and professional support for the application procedure.

In a new report issued in 2023, Myria stresses the specific issue of the high financial cost of the family reunification procedure.[6] Moreover, the UN Refugee Agency (UNHCR) has provided recommendations to improve family reunification rights in Belgium:[7]

• extension of family reunification to certain family members, taking into account the actual composition of the family unit and dependency links;
• facilitating proof of family ties (in cases when official documents are not available);
• exempt refugees from the obligation to fulfil the conditions relating to stable, regular and sufficient means of subsistence, appropriate accommodation and health insurance cover, regardless of the date on which the application for family reunification was submitted;
• ensuring the availability of clear and adapted information and advice for the beneficiary of international protection on family reunification procedure.

Overall, these concerns revolve around the ability of the international protection beneficiaries to realise their full right to family reunification properly. The success of an application for family reunification with a beneficiary of international protection depends entirely on whether the family receives professional support. This is especially the case for reunification with unaccompanied minors. Due to a lack of sufficient organisations and lawyers who can offer this professional support, many families are unable to realise their right to family reunification.[8]

Focus on specific countries

Afghanistan

In the 2022 report, Myria indicates the specific issues that are encountered by Afghan family members since the take-over of power by the Taliban. Whereas the need for protection of these family members is often high, it has become almost impossible to gather the necessary documents and travel to the Belgian diplomatic post in Islamabad, Pakistan. Myria has published a specific report, highlighting obstacles and formulating recommendations on this topic.[9]

Palestine

• Prioritisation of demands and visa application from distance

The Immigration Office processes visa applications from Palestinians in Gaza as a priority but not more leniently than usual.[10] Applicants must prove (as best they can) that they meet all the ordinary conditions. Due to the Afrin judgement, family members of recognised refugees or persons with subsidiary protection can present their family reunification visa via e-mail. In addition, the ministry of Foreign Affairs communicated in December 2023 that this also applies to extended family reunification using humanitarian visa. This concerns family members who have no right to official family reunification, but are still related in the 1^st degree. In the case of adult children, they need to be younger than 25 years old. In February 2024, the Brussels Court of First Instance forced the Belgian state to accept an application for a humanitarian visa by email.[11] It stated that the requirement for the family members in Gaza to introduce the application in persons, could lead to a violation of the right to family life enshrined in article 8 of the ECHR.[12]

• Evacuation list[13]

In mid-December 2023, the National Crisis Centre (Nationaal Crisiscentrum) listed the persons who can register on the evacuation list. These are Belgian citizens residing in Gaza, and their nuclear family members and refugees recognised by Belgium and their nuclear family members. For both groups, the nuclear family includes: the spouse or legal partner, and minor children. All persons who wish to be evacuated must possess a valid Belgian residence permit, or valid visa for Belgium. On a case-by-case basis, without a prior decision on a valid visa, the following persons can request to be registered on the evacuation list: the adult dependent children of a recognised refugee or a Belgian citizen, the parents and minor siblings of a Belgian child or an unaccompanied minor in Belgium who has been recognised as a refugee.[14] These requests to be registered on the waiting list are treated by the crisis centre of the Foreign Affairs Ministry. Registration on this list, does not guarantee an actual evacuation. In practice, the Belgian authorities will communicate the registered evacuees to the Egyptian and Israeli authorities. Only after they have given their agreement, evacuation can take place. The potential evacuees have to present themselves at the Egyptian side of the border with Gaza, after which the Belgian authorities will conduct an evacuation within 72 hours.

An alternative method of submitting applications for family reunification

In the Afrin judgement from 18 April 2023, the CJEU ruled on the obligation for family members to present themselves in person when applying for a family reunification visa.[15] This ruling opens new prospects for family reunification, including beneficiaries of international protection and their families. The CJEU compelled Belgian authorities to provide alternative methods of submitting applications for family reunification in case of the impossibility of going to a Belgian diplomatic post to submit the visa application. The CJEU stated that it is essential for Member States to showcase the necessary flexibility to enable concerned persons to submit their application for family reunification on schedule by facilitating the submission of that application and by permitting the use of remote means of communication. The Office des étrangers has already acknowledged this new case law.[16] Now, family members of recognised refugees can send an email to the competent embassy explaining why they are unable to introduce their visa application in person. The embassy will decide whether the criteria that justify an introduction from distance are met. The Immigration Office nor the competent embassy provide any information on these criteria.

Eligible family members

Four categories of persons may join a beneficiary in Belgium.

• A spouse, equalled partner,[17] or registered partner;
• An underage and unmarried child;
• A child of age with a disability;
• A parent of an unaccompanied child with protection status.

To reunite with a spouse or equalled partner, certain conditions must be fulfilled.[18] 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 spouses can join the beneficiary.[19] 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.[20]

The conditions for a registered partner are largely similar but require proof of a “stable and lasting” relationship.[21] 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 must be unmarried and not be in a lasting relationship with another person. Couples in a long and stable relationship but who are unmarried or did not have their relationship registered, do not qualify for family reunification. This poses inter alia problems for same-sex couples, who are often unable to marry or register their relationship in their country of origin. Consequently, the same-sex partner of a beneficiary of international protection in Belgium often does not qualify for family reunification and needs to apply for a humanitarian visa, which is not a right, but a favour granted by the Belgian government and the procedure for which is very complex.[22]

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 one 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.[23] Since the CJEU ruling A and S v Staatssecretaris van Veiligheid en Justitie family reunification is still possible even if the unaccompanied minor turned 18 during the asylum procedure.[24] In this case, the Immigration Office requires that the application is introduced within 3 months after the applicant received the protection status. On the basis of a recent CJUE ruling of August 2022 (C-279/20), it is established that a similar system should be applicable to children wishing to join their parents residing in Belgium as a beneficiary of international protection: the minority of the child needs to be determined on the moment of the application for international protection of the parent.[25] Although the CJUE rulings concerned beneficiaries of the refugee status, the Immigration Office also applies this jurisprudence to beneficiaries of subsidiary protection and people with a residence permit on the basis of medical regularisation.[26] For children who turned 18 during the asylum procedure of their parent in Belgium, the Council of State recently ruled that the application for family reunification needs to be introduced within 12 months after the parent has obtained the protection status, instead of the previously applied 3 months.[27] The Immigration Office has adapted its practice on the basis of this ruling.

To establish family ties, Belgian law foresees a cascade system.[28] 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 must 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.[29] In the absence of other valid proof, the Belgian authorities may conduct interviews or any other inquiry deemed necessary, such as a DNA test.[30] In practice the Immigration Office makes little use of this cascade system and will often require expensive DNA-testing.[31]

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 does not apply to parents of unaccompanied children wishing to join them in Belgium.[32]

In its recommendations of 2022, the Federal Migration Centre (Myria) indicated that the term of 1 year is in many cases too short due to the specific problems faced by the family of beneficiaries of international protection (e.g. unsafe situation in the country of origin which cause difficulties to travel to the diplomatic post or gather necessary documents, loss of contact with family members in the context of armed conflict, etc.). Myria recommends to permanently exempt beneficiaries of international protection from these material conditions, to allow the effective realisation of their right to family reunification.[33]

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 can alternatively 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[34]), 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 maximum 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 its year report of 2022, Myria has stressed the difficulties people might encounter to travel to Belgium within the validity period of the visa for family reunification (e.g., closed or insecure borders, difficulties in obtaining travel documents…). In the absence of a European or Belgian legal framework determining the consequences of the expiration of the validity period, it is unclear whether the validity period can be prolonged and in which circumstances, or whether a new visa application needs to be lodged. Myria stresses the need of a clear legal framework in this regard, allowing for a flexible approach by the Belgian asylum instances.[35]

[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] Immigration Office, Activity report 2022, available in French: https://bit.ly/3TCCTMU, 8.

[3] Ibidem.

[4] Myria, Year report migration 2023, Right to family life, available in French at: https://bit.ly/43AmAVk.

[5] Myria, Avis : Faciliter et soutenir les demandes de regroupement familial de réfugiés, April 2022, available in Dutch and French at : https://bit.ly/3m97Bk2.

[6] Myria, Year report migration 2023, Right to family life, available in French at: https://bit.ly/43AmAVk.

[7] UNHCR, Réunification familiale, available in French at: https://bit.ly/4crRseG, accessed in February 2024.

[8] See also: Myria, Year report migration 2022 – Right to a family life, available in French and Dutch at: https://bit.ly/3MohPI5.

[9] Myria, ‘Takeover of power by the Taliban in Afghanistan: absence of facilitation measures for applications for visa for family members’, April 2022, available in French and Dutch at: http://bit.ly/3ma0OGM

[10] Agentschap Integratie en Inburgering, ‘Gaza: assistance and evacuation? Legal stay and rights of persons from Palestine territories’ consulted on 25 March 2024, available in Dutch at https://tinyurl.com/2x329r6n.

[11] Francophone Brussels Court of First Instance, 2023/323/C, 2 February 2024, available in French at: https://tinyurl.com/2arxsswu.

[12] For a legal analysis of this judgement see: ‘LC Brussels: Mandatory remote registration application for humanitarian visa for family members in Gaza of recognized refugees’, 21 February 2024, available in Dutch at: https://tinyurl.com/yeh35fjb.

[13] For more information on the evacuation list, see: Myria, ‘Gaza: Belgian assistance and evacuations & introducing a visa application’, consulted on 25 March 2024, available in French at: https://tinyurl.com/37syzvdp.

[14] Agentschap Integratie en Inburgering, ‘Gaza: assistance and evacuation? Legal stay and rights of persons from Palestine territories’ consulted on 25 March 2024, available in Dutch at https://tinyurl.com/2x329r6n.

[15] CJUE, 18 avril 2023, Afrin, C-1/23. Available in French at: https://tinyurl.com/2u8mxeuw.

[16] Immigration Office, ‘Visa D application (family reunification)’, consulted on 25 March 2024, available at: https://tinyurl.com/2amkmrad.

[17] 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.

[18] Article 10(1)(4) Aliens Act.

[19] Children from a polygamous marriage are not excluded if they meet the general conditions: Constitutional Court, Decision No 95/2008, 26 June 2008.

[20] Articles 11(2) and 12-bis Aliens Act.

[21] Article 10(1)(5) Aliens Act.

[22] On this and other categories of family members who don’t fall within the scope of the “family concept” of the Belgian family reunification procedure: Vluchtelingenwerk Vlaanderen, Family reunification for people on the move: obstacles and recommendations, June 2022, available in Dutch at: https://bit.ly/3N0EiaN.

[23] Article 10(1)(7) Aliens Act.

[24] CJEU, Case C-550/16, A and S v Staatssecretaris van Veiligheid en Justitie, 12 April 2018.

[25] CJUE, Case C-279/20, Bundesrepublik Deutschland t. XC, 1 August 2022.

[26] Myria, Contact meeting, 16 May 2018, available at: www.myria.be, para. 6-9; for the rulings of 2022 confirmed on the website of the Agentschap Integratie en Inburgering: http://bit.ly/3nMsGkK.

[27] Council of State 23 December 22, nr. 255.380. More information available in Dutch at: https://bit.ly/3nMsGkK.

[28] Circular of 17 June 2009 containing certain specifics as well as amending and abrogating provisions regarding family reunification, Belgian Official Gazette, 2 July 2009.

[29] Article 12-bis(5) Aliens Act.

[30] Article 12-bis(6) Aliens Act.

[31] UNHCR and Myria, ‘Gezinshereniging van begunstigden van internationale bescherming in België: vaststellingen en aanbevelingen’, June 2018, available in Dutch at: www.myria.be, 19.

[32] Constitutional Court, Decision No 95/2008 of 26 June 2008.

[33] Myria, Avis : Faciliter et soutenir les demandes de regroupement familial de réfugiés, April 2022, available in Dutch and French at : https://bit.ly/3m97Bk2 and Myria, Year report migration 2022 – Right to a family life, available in French and Dutch at: https://bit.ly/3MohPI5.

[34] See: https://dofi.ibz.be/en/themes/faq/visa-fees.

[35] Myria, Year report migration 2022 – Right to a family life, available in French and Dutch at: https://bit.ly/3MohPI5, 12-18.