Belgium

Belgium has a relatively good record on accession to relevant human rights instruments, but it entered declarations to the 1961 Convention, which limit the scope of some provisions to prevent statelessness, and it has not acceded the relevant Council of Europe Conventions. Some data on the stateless population is available, but there are gaps and inconsistencies. Statelessness may be determined through a judicial procedure, but this lacks procedural rules and safeguards, there are issues with the burden and standard of proof, and recognition of statelessness by the courts does not automatically lead to a residence permit nor additional rights. There are also gaps in safeguards to prevent the arbitrary detention of stateless people and people released from detention are not provided with identification documents or rights.

There are some safeguards to prevent and reduce statelessness established in Belgian law, including a provision to automatically grant nationality to otherwise stateless children born on the territory, but there are issues with how this operates in practice. The foundlings provision applies only to newborn children and there may be a risk of statelessness in adoption proceedings due to rules on loss and acquisition of Belgian nationality. Although all births should be registered in Belgium irrespective of parents’ status, public servants must report undocumented people to the immigration authorities, which could be a barrier in practice. Parents must also be legally residing to subsequently register a child in the National Registry, a precondition for access to many rights, including full access to education and healthcare. On loss and deprivation of nationality, there are safeguards to prevent statelessness in most cases, except where nationality is acquired through fraud.

Last updated: 
Feb 2020
Next scheduled update: 
Mar 2021
Country expert(s): 

Julie Lejeune, NANSEN and Wout Van Doren, ENS Individual member

Additional resources

ASSESSMENT KEY

++POSITIVE
+ SOMEWHAT POSITIVE
+-POSITIVE and NEGATIVE
- SOMEWHAT NEGATIVE
--NEGATIVE

ADDITIONAL INFO

-NORMS & GOOD PRACTICE

 

International and Regional Instruments

Assesses whether countries are state party to the relevant international and regional instruments, including whether reservations have an impact on statelessness, and whether instruments are incorporated into domestic law. The four core statelessness treaties (1954 Convention relating to the Status of Stateless Persons; 1961 Convention on the Reduction of Statelessness; European Convention on Nationality; Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession) carry more weight than other relevant human rights instruments in the assessment.

Belgium is state party to both the 1954 and 1961 statelessness conventions, although it entered declarations relating to foundlings and withdrawal of nationality at the time of acceding to the 1961 Convention. Belgium has not acceded to the relevant Council of Europe Conventions, the European Convention on Nationality and the Convention on the Avoidance of Statelessness in Relation to State Succession. However, it is party to most other relevant human rights instruments except for the International Convention on Migrant Workers.

  • Belgium is state party to the 1954 Convention with no reservations and the convention has direct effect.
  • Belgium is state party to the 1961 Convention and the convention has direct effect. 
  • Belgium made two declarations on accession to the convention clarifying that it considers the foundlings provision to apply only to ‘new-borns’; and, that it reserves the right to deprive people of Belgian nationality in certain circumstances.
  • Belgium is state party to most relevant international and regional human rights treaties and is bound by the EU Returns Directive. 
  • However, Belgium is not state party to the Council of Europe Conventions relating to statelessness, the European Convention on Nationality and the Europe Convention on the Avoidance of Statelessness in Relation to State Succession; nor is it party to the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.
  • Belgium is state party to all other relevant human rights treaties with no reservations impacting on statelessness, although it did enter an interpretive declaration to the Convention on the Rights of the Child at the time of ratification stating that its understanding of non-discrimination on grounds of national origin does not imply the obligation to automatically guarantee foreigners the same rights as nationals.

Statelessness Population Data

Examines the availability and sources of disaggregated population data on statelessness. Provides recent figures and assesses reliability of measures countries have in place to count stateless persons, including in the census, population registries and migration databases. Notes whether statelessness has been mapped in the country and whether there are effective measures in place to count stateless people in detention.

Some data on the stateless population in Belgium is available, and UNHCR published a mapping study of statelessness in the country in 2012. The Belgian National Registry records people who have been recognised as stateless and issued long-term residence permits in the country, but it also contains categories that may overlap with ‘stateless’ and does not count people awaiting determination of their statelessness, recognised as stateless but not granted a residence permit, stateless people holding a short-term residence permit, nor stateless people in the asylum procedure. The Belgian Immigration Office collects some data on the nationality of people held in immigration detention, but these figures are not routinely published.

  • Belgium includes a 'stateless' category in its National Registry, which records people who have been recognised as stateless and issued long-term residence permits in Belgium. Figures are also available for stateless refugees. The latest available figures are for January 2018, when there were 906 stateless people with long-term residence and 182 stateless refugees registered in the National Registry. Data is disaggregated by sex and age. 
  • The National Registry includes categories that may overlap with 'stateless', for example, 'undetermined nationality' (4,248 people in January 2017), and 'Palestinian Authority' (362 people in January 2017). 
  • There are also groups of stateless people who are not counted in the data, for example, people awaiting determination of their statelessness, people recognised as stateless but not granted a residence permit, stateless people holding a short-term residence permit, and stateless people in the asylum procedure.
  • UNHCR published a mapping study of statelessness in Belgium in 2012, and its latest estimate of the size of the stateless population on 1 July 2018 was 8,984 people (who it considers 'stateless or who could be at risk of statelessness').
  • The Belgian Immigration Office (Office des étrangers/Dienst Vreemdelingenzaken) does not routinely publish figures on stateless people held in immigration detention, though some figures have been issued in answer to parliamentary questions, which implies that the Office does internally hold data on stateless people in detention; however, figures are only available on request.

Statelessness Determination and Status

Identifies whether countries have a definition of a stateless person in national law that aligns with the 1954 Convention, and whether they have a dedicated statelessness determination (SDP) procedure; or, if not, whether there are other procedures or mechanisms by which statelessness can be identified and legal status determined. Countries are subdivided in four groups to enable comparison between those with an SDP in place, those with other administrative procedures, those with a status but no clear mechanism, and those without any status or mechanism. Where a procedure and status exist, these are assessed against norms and good practice, and the rights granted to recognised stateless persons are examined.

Belgian law does not set out a definition of a stateless person, but since the 1954 Convention has direct effect, the Convention definition applies. There is a judicial procedure through which statelessness can be determined by the family courts in Belgium, but there are no specific procedural safeguards nor rules in place, and a person recognised as stateless does not derive any additional rights from this. Access to the procedure is not facilitated, the burden of proof lies with the applicant, the standard of proof is unclear and there is no clear guidance for decision-makers. There are some procedural safeguards but very limited protection during the procedure, so applicants may be at risk of detention and expulsion. Recognition as stateless does not automatically lead to residence, although a permit may be granted if other conditions can be met. Without a residence permit, only urgent healthcare and access to education for minors are guaranteed. Limited access to housing in asylum reception facilities is available in specific circumstances and access to a minimum allowance is possible on request. Some facilitation of naturalisation is established by law for stateless people with an unlimited residence permit, but this is rarely applied in practice.

  • There is no definition of a stateless person in Belgian Law; however, as the 1954 Convention has direct effect, the Convention definition is applied.
  • Belgium has a judicial procedure through which statelessness can be determined by one of six family courts. 
  • However, there are no specific procedural safeguards or rules in place, and a person recognised as stateless under the judicial procedure does not derive any additional rights (beyond those accessible to undocumented migrants) from this recognition.
  • Claims for statelessness are centralised to some extent in that they are conducted by six family courts around the country. However, the courts have limited expertise on the determination of statelessness.
  • There are no instructions on how to make a claim for recognition of statelessness. Applications must be made in writing in the language of the competent court, and must take the form of a unilateral petition, which is very formalistic and requires several technical legal entries, such as the object of the petition and the jurisdiction. The assistance of a qualified lawyer is required for the petition to have any chance of success. There is a fee of 165 Euro, which may be waived if the applicant has insufficient means. 
  • There is no time limit, nor lawful stay requirement, and the court is obliged to consider an application but only if the submission is valid (i.e. correct format, language, technicalities).
  • There is no safeguard in place to allow the Belgian authorities to initiate a procedure ex officio, nor are there any referral mechanisms in place, although local authorities may advise people with undetermined nationality to seek statelessness determination on an ad hoc basis.
  • UNHCR provides ad hoc training to family court judges, public prosecutors and local civil registrars.
  • By law and in practice the applicant has the burden of proof, though the Crown Prosecutor may in very exceptional cases make enquiries with consular authorities in its advisory role in the procedure.
  • There is no clear guidance for decision-makers and the standard of proof is unclear, though it is accepted through jurisprudence that enquiries into a person’s nationality status can be limited to States with which applicants have relevant links. 
  • There are no specific measures in place to guarantee equality for women, children or other groups, though general legal provisions on non-discrimination apply.
  • Free legal aid is available for applicants who have insufficient means. However, there is no presumption of insufficient means for applicants for stateless determination (as in the case of asylum seekers), and there are barriers to accessing free legal aid in practice. 
  • The family court judge may invite the applicant to a hearing, and, in practice, this always occurs. However, a court hearing cannot be compared with an interview and does not have the same procedural guarantees.
  • Free interpreting is not automatic. The applicant's lawyer may request translation and an interpreter and ask that fees be covered by the state if the applicant has insufficient means.
  • Quality assurance audits of the procedure are not routinely undertaken. The Government proposed to evaluate the centralisation of competence for statelessness determination in 2017, but this has not yet happened.
  • UNHCR provides ad hoc training to family court judges and may play a role in the procedure. It may monitor and/or intervene in individual cases brought to its attention.
  • Decisions (judgements) are given in writing with reasons.
  • There is no set timeframe for the procedure in law or policy, and it appears to vary from one court to another, though on average it takes around a year. 
  • There are no referral mechanisms in place between procedures.
  • The applicant does not have automatic legal admission while their claim of statelessness is assessed. Courts may grant legal admission to applicants, but there are no recent cases of this happening in practice.
  • Applicants for stateless status who do not have a residence permit on any other basis are not entitled to work and are only entitled to urgent medical assistance on the same basis as undocumented migrants. 
  • Applicants for stateless status who do not have a residence permit on any other basis face a risk of detention and expulsion.
  • There is an automatic right of appeal, but the regular fee for court appeals is applied, which is currently 400 Euro. In case of insufficient means, there is a possibility to apply for a fee exemption.
  • Free legal aid is available for appeals for applicants who have insufficient means of subsistence, but there is no automatic assumption of insufficient means as in the case of asylum seekers. 
  • There is some evidence of errors in decision-making, notably in cases of people of Palestinian origin, although only a limited number of decisions are published.
  • Recognition of statelessness does not result in automatic permission to stay nor residence rights, although jurisprudence of the Constitutional Court has established that recognised stateless people who can meet certain requirements - (a) involuntarily lost their nationality and b) cannot obtain a legal and durable right of residence in another state - may receive a limited duration residence permit.
  • In practice, recognised stateless people still need to apply for permission to stay on humanitarian grounds and there are no established criteria for this. 
  • The length of the residence permit granted is at the discretion of the Immigration Office, but generally a renewable limited duration permit for one year is granted.
  • Other rights granted to people recognised as stateless depend on whether they are granted a residence permit rather than the recognition of statelessness per se. If they hold a residence permit, a travel document is issued; they qualify for family reunification under the general regime applicable to third-country nationals; they are entitled to work and education under the general regime ; and they have access to social security and healthcare under the same conditions as third country nationals. Without a residence permit, they only have access to primary and secondary education if they are minors and to urgent healthcare. Undocumented families with minor children have the right to accommodation in reception centres. 
  • There are no specific grounds for revoking a decision on recognition of statelessness.
  • Stateless people can apply for naturalisation through Parliament after two years of legal residence if their right of residence is of unlimited duration.  However, most stateless people initially hold a limited duration humanitarian residence permit or no residence permit at all, so the facilitated regime is hardly ever applied in practice.
  • In the facilitated parliamentary procedure, residence is the only requirement, but in practice, language and integration requirements are applied at the discretion of the competent parliamentary commission. In the regular procedure (after five years' residence), there are no exemptions for stateless people and there is a fee of 150 EUR per application that applies to all adults and children. 
  • Access to nationality can be refused on account of 'reprehensible behaviour', which is an ill-defined concept and is applied broadly in practice.

Detention

Analyses law, policy and practice relating to immigration detention generally, focusing in on protections in place to prevent the arbitrary detention of stateless people during removal and deportation procedures. Subthemes examine areas such as detention decision-making, whether alternatives to detention are legislated for and implemented, procedural safeguards such as time limits, judicial oversight and effective remedies, as well as protections on release and whether statelessness is considered juridically relevant in bilateral return and readmission agreements.

There are gaps in protections to prevent the arbitrary detention of stateless people in Belgium. There is no mechanism to identify statelessness in decisions to detain, and people seeking international protection are routinely detained at the border including on grounds of statelessness. A proposed country of removal should be identified prior to detention and detention should only be a measure of last resort, but current practice suggests otherwise. Some procedural safeguards are in place, including a time limit and free legal aid, but there is no automatic periodic review of any detention for less than five months. People released from detention are not provided with identification documents and therefore have very few rights.

  • Powers for immigration detention are provided for in law and restricted to purposes allowed under ECHR Article 5(1)(f). 
  • In principle, a proposed country of removal should be identified prior to detention. However, recent practice has developed whereby a person can be detained under an initial (temporary) order to leave the territory in which no country of removal is identified pending examination and a further 'removal decision' being issued, which does contain a proposed country of removal.
  • There is no dedicated mechanism in place to identify stateless people or those at risk of statelessness in decisions to detain. People seeking international protection are routinely detained at the border including on grounds of statelessness.
  • The law states that detention should only be used as a measure of last resort, but practice suggests otherwise.
  • There is no mechanism in place to assess vulnerability prior to the detention decision and statelessness is not mentioned in the Immigration Law as a factor increasing vulnerability.
  • The law states that alternatives to detention shall be established by Royal Decree, but no such decree has been enacted. 
  • According to the law, a place of residence may be designated for the time necessary to carry out a particular measure; but, in practice, alternatives are not considered prior to detention except in the case of families with minor children who may be held in 'return houses' before being detained in closed family units.
  • A time limit is set in law. Detention is permitted for an initial two months, which can be extended if steps have been taken to effect removal within seven working days, which are continued with due diligence and removal is possible within a reasonable period. The detention can be prolonged by the Minister for a further month but cannot exceed five months except in cases of public order or national security, when it cannot exceed eight months.
  • The law states that detainees should be informed in writing of the legal basis for detention and how to challenge it. In practice, the communication of reasons for extending detention is sometimes delayed. 
  • Detainees receive information on their rights and services available to them in detention centres, but interpreters are not used so this is ineffective in practice and no information is provided about statelessness determination.
  • There is no automatic, periodic review of detention before a court or independent body, unless the detention is prolonged to five months by the Minister, in which case the lawfulness of the extension must be reviewed by the court.
  • Detainees have access to a court to challenge their detention, but a qualified lawyer is needed, the judicial review is limited to the lawfulness of detention (not the appropriateness) and the responsible courts are not necessarily specialised in immigration law.
  • Free legal aid is available and guaranteed by the Constitution. 
  • There are no guidelines in place for the process of redocumentation, which is ad hoc and based on the practice of relevant consular authorities.
  • People released from detention are issued with an order to leave the territory and are not provided with identification documents. 
  • Without documentation, people released from detention have very limited rights, such as access to urgent medical care only.
  • Cumulative time spent in detention is not counted towards the maximum time limit as a new decision is issued each time a person is re-detained.
  • Only limited information is available about whether statelessness is addressed in return and readmission agreements Belgium has entered into as an EU Member State, Benelux Member State or bilaterally with third countries. The text of EU agreements is publicly available, and Benelux agreements may be consulted on request. As well as readmission agreements, Belgium has entered into bilateral readmission MoUs, which are not publicly available. The Immigration Office refused permission to review the text of relevant MoUs but says that statelessness is not systematically addressed in these agreements.

Prevention and Reduction

Assesses the adequacy of safeguards in nationality laws to prevent and reduce statelessness, including protections for otherwise stateless children born on the territory or to nationals abroad, foundlings and adopted children. Examines law, policy and practice on birth registration, including access to late birth registration, reduction measures taken by states to prevent statelessness among groups at high risk, and provisions regarding withdrawal of nationality.

There are some safeguards to prevent and reduce statelessness in Belgium, but there are also some gaps. A stateless child born on the territory is Belgian by law, but further action is required in practice to prove eligibility and the burden of proof lies with the applicant. Foundlings automatically acquire Belgian nationality, but the Government has declared the provision applies only to new-borns. There may also be a risk of statelessness in the adoption process due to rules on loss and acquisition of Belgian nationality. For a child born to Belgian parents abroad to acquire Belgian nationality automatically, at least one parent must also have been born in Belgium, otherwise the parents must take further action before the child turns five. All births must be registered in Belgium regardless of the parents’ status, but civil registrars must report undocumented people to the immigration authorities, and subsequent registration in the National Registry (a precondition for access to other rights) is only possible if at least one parent (or the child) has legal residence. There are safeguards to prevent statelessness in all provisions of Belgian law related to loss and deprivation of nationality except in the case of fraud.

  • Belgian Law provides that a child born in Belgium is Belgian if they would otherwise be stateless at any moment before they reach the age of 18 (or emancipation). 
  • The provision is automatic in law, but in practice it must be proven that the conditions and requirements imposed by the law are met, and the burden of proof lies on the applicant/their legal representative.
  • There is no requirement that the parents are also stateless, nor that they or the child fulfil a period of (legal) residence.
  • The law states that the child is not Belgian if they can obtain another nationality through the action of their parents (e.g. approaching consular authorities), but jurisprudence has clarified that this should be considered an exception and does not apply if the parents are unable to apply to the consular authorities of their country of origin, for example if they are refugees.
  • Foundlings are automatically presumed to be Belgian at birth until proven otherwise.
  • In a declaration at the time of acceding to the 1961 Convention, Belgium stated that the foundlings’ provision would apply only to a new-born child found in Belgium. It is not clear how this is implemented in practice.
  • Nationality can only be withdrawn from foundlings upon acquisition of another before the child is 18 (or emancipated).
  • A minor adopted by national(s) of another country who acquires or already possesses the nationality of that country loses Belgian nationality. 
  • There could be a risk of statelessness in the procedure, but no information is available about how this operates in practice. 
  • A foreign child under the age of 18 adopted by national parents acquires nationality the day the adoption takes effect either automatically if either the child or one of the adoptive parents was born in Belgium or if the child has not acquired the nationality of any other country; or by declaration if neither the child nor the parent was born in Belgium. In this case, the parent must make a declaration within five years of the adoption taking effect and before the child turns 18.
  • Children born to nationals abroad acquire nationality by descent automatically if at least one parent is a national and born in the country, or if the child has not acquired the nationality of any other country; or by declaration if neither of the parents was born in Belgium. In this case, the parent/s must make a declaration within five years of birth for the child to acquire nationality.
  • There are no discriminatory conditions.
  • The law provides that all births are registered in the Birth Registry and a birth certificate issued by the civil registrar of the municipality of birth within 15 days of the birth, regardless of the legal status and/or documentation of the parent. All birth certificates are kept in the civil status register and are only issued to parents on request.
  • If the parents don't register the birth within 15 days, the civil registrar will draw up the birth certificate ex officio based on the information provided in the notification of birth. If there were no witnesses to the birth and registrars were not notified within 15 days, the registration could take place later following a court judgement for which court fees would apply.
  • There is no evidence that children face barriers to birth registration in Belgium.
  • The child's nationality is not recorded upon birth registration but should be determined at birth registration to resolve questions of private international law (such as filiation and name). In practice this is not always possible, in which case Belgian law is applied. 
  • Nationality is recorded during the subsequent registration in the National Registry, which is carried out by the municipality of residence of the parents (or the Immigration Office if they are registered asylum seekers). Registration in the National Registry is only possible if at least one of the parents has legal residence status (or if the child can obtain legal residence on their own). Nationality is registered based on a national passport or a certificate of nationality. If nationality cannot be determined, the child will be registered as having 'undetermined nationality'. 
  • If the child cannot be registered in the National Registry, they will effectively be undocumented and have only limited access to healthcare, schooling etc.
  • Public servants, including civil registrars, are required to report undocumented migrants to the immigration authorities.
  • There is no evidence of specific actions on the part of the Belgian authorities to implement reforms aimed at reducing statelessness, nor to promote birth registration among high risk groups (such as Palestinians, Kurds and children at risk of statelessness due to difficulties in proving filiation or due to gender-discriminatory nationality laws).
  • There is a safeguard against statelessness in all provisions in Belgian law that permit loss of Belgian nationality. 
  • There is a safeguard against statelessness in all provisions permitting deprivation of Belgian nationality, except if nationality was acquired by fraud. In this case, even if the person does not have another nationality, deprivation of nationality will be ordered after the expiry of a reasonable period determined by the Court to allow the person to try and recover their original nationality.

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