belgiquelex.be - Carrefour Bank of Legislation

8 JULY 2011. - An Act to amend the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens with respect to conditions for family reunification (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^{er. -} General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 2. - Amendments to the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens
Art. 2. Section 10 of the Act of 15 December 1980 on Access to Territory, Residence, Establishment and Displacement of Aliens, replaced by the Act of 15 September 2006 and amended by the Act of 25 April 2007, is replaced by the following:
“Art. 10. § 1^er. Subject to the provisions of articles 9 and 12, are entitled to stay more than three months in the Kingdom:
1°The alien whose right of residence is recognized by an international treaty, by law or by a royal decree;
2° the foreigner who fulfils the legal conditions to acquire Belgian nationality by option under article 13, 1°, 3° and 4°, of the Belgian Nationality Code, or to recover it, without it being required, however, that he had his principal residence in Belgium for the twelve months preceding the application for admission to the residence and without having to make a declaration, as the case may be, of option or recovery of Belgian nationality;
3° the woman who, by marriage or following the acquisition by her husband of a foreign nationality, lost Belgian nationality;
4° the following family members of a foreigner who has been admitted or authorized to stay in the Kingdom for at least 12 months for an unlimited period of time, or who has been allowed to settle in the Kingdom for at least 12 months. This twelve-month period shall be deleted if the marital relationship or registered partnership pre-existed upon the arrival of the foreigner joined in the Kingdom or if they have a common minor child, or if it is members of the family of a foreigner recognized as a refugee or beneficiary of subsidiary protection:
- his foreign spouse or foreigner with whom he is bound by a registered partnership considered equivalent to a marriage in Belgium, who comes to live with him, provided that the two persons concerned are more than twenty-one years old. This minimum age is however reduced to eighteen years when the marital relationship or registered partnership, as the case may be, is pre-existing when the foreigner arrives in the Kingdom;
- their children, who come to live with them before they reach the age of eighteen and are single;
- the children of the foreigner joined, his or her spouse or registered partner referred to in the first dash, who come to live with them before reaching the age of eighteen years and are single, provided that the foreigner joins, his or her spouse or registered partner has the right to custody and custody and, in case of shared custody, provided that the other holder of the right to custody has given his or her consent;
5° the foreigner bound by a partnership registered in accordance with a law to a foreigner admitted or authorized, for at least twelve months, to stay in the Kingdom for an unlimited period of time or allowed to settle there for at least twelve months, as well as the children of that partner, who come to live with them before reaching the age of eighteen and are single, provided that he has the right to custody and the charge and, in case This twelve-month period is prescribed if the marital bond or registered partnership pre-existed upon the arrival of the foreigner joined in the Kingdom or if they have a common minor child.
Partners referred to in paragraph 1^er must meet the following conditions:
(a) Proving that they maintain a well-established and sustainable partner relationship.
The lasting and stable nature of this relationship is established:
- if the partners prove that they have cohabited legally in Belgium or in another country and uninterrupted for at least one year before the application;
- or if the partners prove that they have known each other for at least two years prior to the application and provide evidence that they have maintained regular contacts by telephone, regular or electronic mail, that they have met three times during the two years prior to the application and that these meetings have a total of 45 days or more;
- or if partners have a common child;
(b) come to live together;
(c) both older than twenty-one years;
(d) be unmarried and not having a lasting and stable partner relationship with another person;
(e) not one of the persons referred to in articles 161 to 163 of the Civil Code;
(f) having made neither one nor the other the subject of a decision on the basis of Article 167 of the Civil Code, provided that the decision has been cast into force of a judgment.
The minimum age of partners is reduced to eighteen years when they can prove a cohabitation of at least one year before the arrival of the foreigner joined in the Kingdom.
6° the unmarried disabled child of more than eighteen years of a foreigner authorized or admitted to stay in the Kingdom for an unlimited period of time or allowed to settle in the Kingdom, or of his spouse or partner within the meaning of point 4° or 5°, provided that he or she provides a certificate from a physician accredited by the Belgian diplomatic or consular post indicating that he or she is, because of his or her disability, provided his or her own needs
7° the father and mother of a foreigner who is recognized as a refugee within the meaning of Article 48/3 or who is entitled to subsidiary protection, who come to live with him, provided that he is less than eighteen years old and has entered the Kingdom without being accompanied by a major foreigner responsible for him by law and has not been effectively taken care of by such a person thereafter, or was left alone after entering the Kingdom.
Paragraph 1^er, 4°, is not applicable to the spouse of a polygamous foreigner when another spouse of the latter already resides in the Kingdom.
The King sets out, by royal decree deliberated in the Council of Ministers, cases in which a partnership registered on the basis of a foreign law must be considered equivalent to marriage in Belgium.
Children's provisions apply unless an international agreement binding Belgium provides for more favourable provisions.
§ 2. Aliens referred to in § 1^erParagraph 1^er, 2° and 3°, must prove that they have stable, sufficient and regular means of subsistence to meet their own needs and not become a burden for public authorities.
Aliens referred to in § 1^erParagraph 1^er, 4° to 6°, must prove that the foreigner joined has sufficient housing to be able to receive the member(s) of his or her family who ask to join him and who meets the conditions laid down in a building that is leased as a principal residence, as provided for in Article 2 of Book III, Part VIII, Chapter II, Section 2, of the Civil Code, as well as health insurance covering the risks in Belgium for himself and the members of the family. The King sets out, by royal decree deliberated in the Council of Ministers, how the foreigner proves that the building meets the conditions laid down.
The foreigner referred to in § 1^erParagraph 1^er, 4° and 5°, must also prove that the foreigner joins has stable, regular and sufficient means of subsistence as provided in § 5 to support his own needs and those of his family members and to prevent them from becoming a burden for the public authorities. This condition is not applicable if the foreigner is only joined by family members referred to in § 1^erParagraph 1^er4°, 2 and 3.
The foreigner referred to in § 1^erParagraph 1^er, 6°, must prove that the foreigner joins has stable, regular and sufficient means of subsistence as provided in § 5 to support his own needs and those of his family members and to prevent them from becoming a burden for the public authorities.
Paragraphs 2 and 3 are not applicable to members of the family of a recognized alien who is a refugee and a foreigner who has subsidiary protection referred to in § 1^erParagraph 1^er, 4°, 5° and 7°, when the bonds of kinship or alliance or the registered partnership are preceded by the entry of this foreigner into the Kingdom and provided that the request for stay on the basis of this article was introduced in the year following the decision recognizing the quality of refugee or granting subsidiary protection abroad joined.
The Minister or his or her delegate may, however, require, by a reasoned decision, the production of the documents referred to in paragraphs 2 and 3 where family reunification is possible in another country with which the foreigner joins or the member of his or her family has a particular connection, taking into account the circumstances of fact, the conditions set in that other country with respect to family reunification and the extent to which the aliens concerned may reunite them.
All foreigners referred to in § 1^er must also demonstrate that they are not affected by any of the diseases that could endanger public health listed in the Schedule to this Act.
§ 3. Subject to the application of Article 11, § 2, when a foreigner has himself been admitted to stay under § 1^erParagraph 1^er, 4° or 5°, as a spouse or unmarried partner, after the entry into force of this provision, the right to come and join him on the basis of a marriage or registered partnership, may only be invoked when he or she can demonstrate two years of regular stay in the Kingdom.
§ 4. § 1^erParagraph 1^er, 1° and 4° to 6°, is not applicable to members of the foreign family authorized to stay in Belgium for studies or allowed to stay there for a limited period, fixed by this Act or due to special circumstances specific to the interested person or in relation to the nature or duration of his activities in Belgium.
§ 5. The stable and sufficient means of subsistence referred to in § 2, paragraph 3, shall be at least equivalent to one hundred and twenty per cent of the amount referred to in Article 14, § 1^er3° of the law of 26 May 2002 concerning the right to social integration.
Assessment of these means of subsistence:
1° takes into account their nature and their regularity;
2° does not take into account the means derived from complementary assistance schemes, i.e., integration income and supplement of family allowances, or financial social assistance and family allowances;
3° does not take into account the waiting allowances or the transition allowance and only takes into account the unemployment benefit provided that the spouse or partner concerned can prove that he is actively seeking work. »
Art. 3. Section 10bis of the Act, inserted by the Act of 28 June 1984, replaced by the Act of 15 September 2006 and amended by the Act of 25 April 2007, is replaced by the following:
"Art. 10bis. § 1^er. When members of the family referred to in Article 10, § 1^erParagraph 1^er, 4° to 6°, of a foreign student authorized to stay introduce a residence permit application for more than three months, this authorization must be granted if the student or one of the members of his family in question proves:
- that it has stable, regular and sufficient means of subsistence, in accordance with Article 10, § 5, to support its own needs and those of its family members and to prevent them from becoming a burden on the public authorities;
- that it has decent housing, which allows it to receive the member(s) of its family who ask to join it and who meets the conditions applicable to a particular property for rent as a principal residence, referred to in Article 2 of Book III, Part VIII, Chapter II, Section 2, of the Civil Code. The King determines, by order deliberately in the Council of Ministers, how the foreigner demonstrates that the immovable property meets the conditions provided for;
- that he has health insurance covering the risks in Belgium for himself and his family members;
- that they are not in one of the cases referred to in Article 3, paragraph 1^er, 5° to 8°, or are not affected by any of the diseases that could endanger public health, listed in the Schedule to this Act.
The provisions of Article 12bis, § 6, also apply.
§ 2. When members of the family referred to in Article 10, § 1^erParagraph 1^er, 4° to 6°, of a foreigner authorized to stay in Belgium for a limited period of time, fixed by this Act or due to special circumstances specific to the person concerned or in relation to the nature or duration of his activities in Belgium, shall apply for a residence permit of more than three months, such authorization shall be granted if they prove:
- that the foreigner joins has stable, regular and sufficient means of subsistence, in accordance with Article 10, § 5, to support his own needs and those of his family members and to prevent them from becoming a burden for the public authorities;
- that the foreigner joins has a housing deemed appropriate to receive the member(s) of his or her family who requests to join him and who meets the conditions applicable to a particular property for rent as a principal residence, referred to in Article 2 of Book III, Part VIII, Chapter II, Section 2, of the Civil Code. The King determines, by deliberate decree in the Council of Ministers, how the foreigner demonstrates that the property meets the conditions provided and that it has health insurance covering the risks in Belgium for himself and members of his family;
- that they are not in one of the cases referred to in Article 3, paragraph 1^er, 5° to 8°, or are not affected by any of the diseases that could endanger public health, listed in the Schedule to this Act.
The provisions of Article 12bis, § 6, also apply.
§ 3. §§ 1^er and 2 are also applicable to family members referred to in Article 10, § 1^erParagraph 1^er, 4° to 6°, of a foreigner with long-term resident status in another Member State of the European Union, on the basis of the Council of the European Union Directive 2003/109/EC of 25 November 2003 on the status of nationals of long-term resident third countries, which is authorized to stay in the Kingdom on the basis of the provisions of Title II, Chapter V, or who requests such authorization.
However, when the family is already constituted or reconstituted in that other EU Member State, the foreigner joins must not demonstrate that he has decent housing to receive the family member(s) and, with regard to the condition of possession of stable, regular and sufficient livelihoods, proof that the family member has such personal means will also be taken into account. In order to be able to benefit from this particular regime, the members of the family concerned must produce the EC long-term residence permit or the residence permit issued to them by a Member State of the European Union and the evidence that they have resided as a member of the family of a long-term resident in that State. »
Art. 4. In section 10ter of the Act, inserted by the Act of 15 September 2006 and amended by the Act of 25 April 2007, § 2 is replaced by the following:
“§2. The decision on the application for permission to stay is taken and notified as soon as possible and no later than six months after the date of filing of the application defined in § 1^er. The decision is taken taking into account all elements of the file.
If the condition of stable and regular means of subsistence referred to in Article 10, § 5 is not met, the Minister or his delegate shall determine, on the basis of the needs of the foreigner and his family members, what means of subsistence are necessary for them to meet their needs without becoming a burden for the public authorities. The Minister or his or her delegate may, for this purpose, be provided by the foreigner with all relevant documents and information to determine that amount.
In exceptional cases related to the complexity of the examination of the application as well as in an investigation into a marriage referred to in Article 146bis of the Civil Code or the conditions of the lasting and stable relationship referred to in Article 10, § 1^erParagraph 1^er, 5°, the Minister or his delegate may, on two occasions, extend this period by three months, by a reasoned decision, brought to the attention of the applicant.
Upon the expiry of the six-month period following the date of filing of the application, possibly extended in accordance with paragraph 2, if no decision has been taken, the residence permit must be issued.
As part of the examination of the application, due consideration is given to the best interests of the child. »
Art. 5. Section 11 of the Act, replaced by the Act of 15 September 2006 and amended by the Act of 25 April 2007, is replaced by the following:
“Art. 11. § 1^er. The Minister or his or her delegate may decide that the foreigner who declares to be in one of the cases provided for in section 10 does not have the right to enter or stay in the Kingdom, in one of the following cases:
1° the foreigner does not meet or fulfil the requirements of Article 10;
2° the foreigner and the foreigner joined do not maintain or more effective marital or family life;
3° except for exemptions provided by an international treaty, the foreigner is in one of the cases provided for in Article 3, 5° to 8°, or is suffering from one of the diseases that could endanger public health, listed in the Schedule to this Act;
4° the foreigner or the person he joins has used false or misleading information or false or falsified documents, or has resorted to fraud or other illegal means of a determining character, in order to be allowed to stay, or it is established that marriage, partnership or adoption have been concluded only to allow him to enter or stay in the Kingdom.
In the case of family members of a recognized refugee or a foreigner with subsidiary protection whose parenting or alliance ties are prior to the entry of the latter in the Kingdom, the decision may not be based solely on the lack of official documents proving the parenting or alliance link in accordance with Article 30 of the Act of 16 July 2004 bearing the Code of Private International Law or the international conventions on the same subject.
The decision indicates, where applicable, the provision of Article 3 that is applied.
In the event that the decision was made on the basis of 2° and 4°, the repatriation costs may be recovered from the foreigner or the person joined.
§ 2. The Minister or his or her delegate may decide that a foreigner who has been admitted to stay in the Kingdom on the basis of Article 10 is no longer entitled to stay in the Kingdom, in one of the following cases:
1° the foreigner no longer meets one of the conditions of Article 10;
2° the foreigner and the foreigner joined do not maintain an effective marital or family life;
3° the foreigner, admitted to stay in the Kingdom as a registered partner on the basis of Article 10, § 1^er, 4° or 5°, or the foreigner he joined, married with another person or is bound to another person by a partnership registered in accordance with a law;
4° the foreigner or the person he joins has used false or misleading information or false or falsified documents, or has resorted to fraud or other illegal means, which have been decisive for the recognition of the right to stay, or it is established that marriage, partnership or adoption have been concluded only to allow him to enter or stay in the Kingdom.
The decision based on point 1°, 2° or 3° may be taken only in the first three years following the issuance of the residence permit or, in the cases referred to in article 12bis, §§ 3 or 4, following the issuance of the document certifying that the application was filed.
The Minister or his or her delegate may carry out or conduct controls for the extension or renewal of the residence permit, in order to verify whether the foreigner meets the requirements of section 10. It may at any time carry out or carry out specific controls where there are presumptions of fraud or where marriage, partnership or adoption has been concluded to allow the person concerned to enter or stay in the Kingdom.
The Minister or his or her delegate may not terminate the stay on the basis of paragraph 1^er, 1°, 2° or 3°, if the foreigner proves to have been a victim during the marriage or partnership of a fact referred to in articles 375, 398 to 400, 402, 403 or 405 of the Criminal Code. In other cases, the Minister or his or her delegate takes particular consideration of the situation of persons who are victims of violence in their families, who no longer form a family unit with the person they have joined and require protection. In such cases, it will inform the person concerned of his decision not to terminate his stay on the basis of paragraph 1^er, 1°, 2° or 3°.
When deciding to end the stay on the basis of paragraph 1^er, 1°, 2° or 3°, the Minister or his delegate takes into consideration the nature and strength of the family ties of the person concerned and the duration of his stay in the Kingdom, as well as the existence of family, cultural or social ties with his country of origin.
If the decision is made on the basis of 2° and 4°, the repatriation costs may be recovered from the foreigner or the person he has joined. »
Art. 6. Section 12bis of the Act, inserted by the Act of 6 August 1993 and last amended by the Act of 7 June 2009, is replaced by the following:
"Art. 12bis. § 1^er. An alien who declares to be in one of the cases referred to in Article 10 must apply to the Belgian diplomatic or consular representative competent for the place of his residence or residence abroad.
However, it may apply to the municipal administration of the locality where it stays in the following cases:
1° if it is already allowed or allowed to stay more than three months in the Kingdom in another title and submits all evidence referred to in § 2 before the end of the admission or authorization;
2° if it is authorized to stay for a maximum of three months and, if required by law, has a valid visa to enter into a marriage or partnership in Belgium, if the marriage or partnership has been concluded before the end of the authorization and if it presents all the evidence referred to in § 2 before the end of the authorization;
3° if in exceptional circumstances that prevent him from returning to his country to apply for the visa required under Article 2 to the competent Belgian diplomatic or consular representative, and shall present all the evidence referred to in § 2 and proof of his identity;
4° if he is allowed to stay for a maximum of three months and is a minor child referred to in Article 10 § 1^erParagraph 1^er, 4°, dashes 2 and 3, or if he is the author of a recognized refugee minor or a minor receiving subsidiary protection referred to in Article 10, § 1^erParagraph 1^er7°.
§ 2. When the foreigner referred to in § 1^er submits its application to the competent Belgian diplomatic or consular representative for the place of his residence or residence abroad, the latter must be accompanied by the documents which prove that he meets the conditions referred to in Article 10, §§ 1^er to 3, including a medical certificate from which it results that it is not affected by one of the diseases listed in the Schedule to this Act, as well as a criminal record extract or equivalent document, if it is more than eighteen years old.
The date of filing of the application is the date on which all of these documents, in accordance with Article 30 of the Act of 16 July 2004, bearing the Code of Private International Law or international conventions dealing with the same matter, are produced.
The decision on admission to stay is taken and notified as soon as possible and no later than six months after the date of filing of the application defined in paragraph 2. The decision is taken taking into account all elements of the file.
If the condition of stable and regular means of subsistence referred to in Article 10, § 5 is not met, the Minister or his delegate shall determine, according to the needs of the foreigner and his family members, the means of existence necessary to meet their needs without becoming a burden on the public authorities. The Minister or his or her delegate may, for that purpose, be provided by the foreigner with all relevant documents and information to determine that amount.
In exceptional cases related to the complexity of the examination of the application as well as in an investigation into a marriage referred to in Article 146bis of the Civil Code or the terms of the partnership referred to in Article 10, § 1^erParagraph 1^er, 5°, the Minister or his delegate may, on two occasions, extend this period by three months, by a reasoned decision, brought to the attention of the applicant.
Upon expiry of the six-month period following the date of filing of the application, possibly extended in accordance with paragraph 4, if no decision has been taken, the admission to the stay must be recognized.
§ 3. In cases referred to in § 1^er, paragraph 2, 1 and 2°, when the foreigner referred to in § 1^er is present at the municipal administration of the place of his residence and declares to be in one of the cases provided for in Article 10, in view of the documents required for his entry and stay and provided that all evidence referred to in § 2, paragraph 1^er, be produced, possessed a certificate of receipt of the application. The municipal administration shall inform the Minister or his or her delegate of the application and shall promptly transmit it to him or her.
Where the Minister or his or her delegate considers that the application is not manifestly unfounded, or, within five months of the issuance of the receipt certificate referred to in paragraph 1^er, no decision is made to the municipal administration, the application is declared admissible. The foreigner is registered in the register of foreigners and has a document attesting that he is registered in the register of foreigners.
In the event of a favourable decision by the Minister or his or her delegate on admission to stay or, within six months of the issuance of the receipt certificate referred to in paragraph 1^er, no decision is brought to the attention of the municipal administration, the foreigner is allowed to stay.
In exceptional cases related to the complexity of the examination of the application, as well as in an investigation into a marriage referred to in Article 146bis of the Civil Code or the terms of the partnership referred to in Article 10, § 1^erParagraph 1^er, 5°, and by a reasoned decision, made available to the applicant prior to the expiry of the period referred to in paragraph 3, the Minister or his delegate may, on a maximum of two occasions, extend this period for a period of three months.
§ 4. In cases referred to in § 1^er, paragraph 2, 3°, when the foreigner referred to in § 1^er submits to the municipal administration of the place of his residence and declares to be in one of the cases provided for in section 10, it shall ensure without delay the admissibility of the application to the Minister or his delegate. When the foreigner considers that the foreigner meets the conditions of § 1^er, paragraph 2, 3°, it communicates it to the municipal administration that registers the foreigner in the register of foreigners and puts it in possession of a document certifying that the application was filed and a document certifying that it is registered in the register of foreigners.
The assessment of the medical situation, if any, invoked by the foreigner, shall be made by a medical officer or a doctor designated by the Minister or his delegate who renders a notice on this subject and may, if necessary, examine the foreigner and request the additional opinion of experts, designated in accordance with Article 9ter, § 2.
The provisions of § 3, paragraphs 3 and 4, are also applicable.
§ 5. Where the family member(s) of a recognized alien who is a refugee or a subsidiary protection member whose parenting or alliance ties are prior to the entry of the alien in the Kingdom, may not provide the official documents that prove that they meet the terms and conditions of the parenting or alliance link referred to in Article 10, other valid evidence is taken into account in respect of that connection. If not, the provisions of § 6 may be applied.
§ 6. Where it is found that the foreigner cannot demonstrate the relationship of kinship or covenant invoked, by official documents in accordance with section 30 of the Act of 16 July 2004 relating to the Code of Private International Law or to international conventions relating to the same matter, the Minister or his delegate may take into account other valid evidence produced with respect to that link.
If not, the Minister or his or her delegate may conduct or conduct interviews with the foreigner and the foreigner or any investigation deemed necessary, and may propose, where appropriate, a further analysis.
§ 7. As part of the examination of the application, due consideration is given to the best interests of the child. »
Art. 7. Section 13 of the Act, replaced by the Act of 15 September 2006 and amended by the Act of 25 April 2007, is replaced by the following:
“Art. 13. § 1^er. Unless otherwise expressly provided, the residence permit shall be given for a limited period of time, either fixed by this Act or because of the particular circumstances of the person concerned, or in relation to the nature or duration of the benefits to be performed in Belgium.
The residence permit granted for a limited period of time on the basis of section 9ter becomes unlimited on the expiry of the five-year period following the application for authorization.
Admission to stay under Article 10 shall be recognized for a limited period of time for the period of three years following the issuance of the residence permit or, in the cases referred to in Article 12bis, §§ 3 or 4, following the issuance of the document certifying that the application has been filed, at the expiry of which it becomes unlimited, provided that the alien still complies with the conditions of Article 10.
The father and mother referred to in Article 10 § 1^erParagraph 1^er, 7°, a foreigner recognized as a refugee within the meaning of Article 48/3 or a foreigner enjoying subsidiary protection must also prove that they have stable, sufficient and regular means of subsistence as provided for in Article 10, § 5.
By derogation from paragraph 3, family members of a foreign national authorized to stay for a limited period of time, to which Article 10, § 1^erParagraph 1^er, 1°, is applicable, the provision provided for in paragraph 6.
The residence permit issued to a foreigner authorized or admitted to a stay for a limited period is valid until the validity of the authorization or admission. Where a residence permit has been issued to a foreigner admitted to the residence for a limited period of time in accordance with paragraph 3 and the admission to the residence becomes unlimited during the validity period of the residence permit, the residence shall remain valid until the term of validity of the residence permit. The King determines the validity of the residence permit issued abroad or allowed to stay for an unlimited period of time.
Members of the family referred to in Article 10bis, §§ 1^er at 3, obtain a residence permit whose term of validity is identical to that of the residence permit of the foreigner joined.
§ 2. The residence permit shall be extended or renewed, at the request of the person concerned, by the municipal administration of the place of his residence, provided that the application has been filed before the expiry of the title and that the Minister or his delegate has extended the authorization for a new period or has not terminated the admission to the residence.
The King determines the time and conditions in which renewal or extension of residence permits must be requested.
§ 2bis. The Minister or his or her delegate may terminate the stay of a foreigner authorized to stay in the Kingdom for an unlimited period of time when he or she has used false or misleading information or false or falsified documents, or has resorted to fraud or other illegal means, which have been instrumental in obtaining permission to stay.
§ 3. The Minister or his or her delegate may order to leave the territory abroad authorized to stay in the Kingdom for a limited period of time, fixed by law or because of special circumstances specific to the person concerned or in relation to the nature or duration of his or her activities in Belgium, in one of the following cases:
1° when it extends its stay in the Kingdom beyond this limited period;
2° when he no longer meets the conditions laid down in his stay;
3° when he used false or misleading information or false or falsified documents, or resorted to fraud or other illegal means that were determinant to obtain residence authorization.
§ 4. The Minister or his or her delegate may take the same action with respect to family members referred to in Article 10 bis, § 2, in one of the following cases:
1° it is terminated the stay of the foreigner joined on the basis of § 3;
2° the foreigner no longer meets the conditions laid upon his stay;
3° the foreigner and the foreigner joined do not maintain an effective marital or family life;
4° the alien authorized to stay in the Kingdom as a registered partner within the meaning of Article 10 § 1^er, 4° or 5°, or the foreigner that he joined, married or has a lasting relationship with another person;
5° the foreigner has used false or misleading information or false or falsified documents, or has resorted to fraud or other illegal means that have been decisive for obtaining permission to stay, or it is established that marriage, partnership or adoption have been concluded only to allow him to enter or stay in the Kingdom.
Without prejudice to the application of section 61, § 3, the Minister or his delegate may take the same measure with respect to family members referred to in section 10 bis, § 1^er.
When deciding to issue an order to leave the territory on the basis of paragraph 1^er1° to 4°, the Minister or his delegate takes into consideration the nature and strength of the family ties of the person and the duration of his stay in the Kingdom, as well as the existence of family, cultural or social ties with his country of origin.
§ 5. During the ten years following the application for permission to stay, the Minister or his delegate may terminate the stay of the foreigner authorized to stay for more than three months in the Kingdom on the basis of Article 9ter and give him the order to leave the territory when he obtained this authorization on the basis of facts presented in altered manner or that he has concealed, false statements or documents false or faltrosified, which have been made determinative.
§ 6. The order to leave the territory indicates that the provisions of this article have been applied.
The Minister or his or her delegate may carry out or conduct controls for the extension or renewal of the residence permit, in order to verify whether the foreigner meets the requirements of section 10bis. It may at any time carry out or carry out specific controls where there are presumptions of fraud or that marriage, partnership or adoption has been concluded to allow the person concerned to enter or stay in the Kingdom. »
Art. 8. Section 40bis of the Act, inserted by the Act of 25 April 2007 and amended by the Act of 6 May 2009, is replaced by the following:
"Art. 40bis. § 1^er. Without prejudice to more favourable provisions contained in European laws or regulations whose family members of the Union citizen may avail themselves, the following provisions apply to them.
§ 2. Are considered family members of the Union citizen:
1° the spouse or foreigner with whom he is bound by a registered partnership considered equivalent to a marriage in Belgium, who accompanies or joins him;
2° the partner to which the citizen of the Union is bound by a partnership registered in accordance with a law, and who accompanies or joins it.
Partners must meet the following conditions:
a) to demonstrate that they maintain a well-established and sustainable partnership relationship.
The lasting and stable nature of this relationship is demonstrated:
- if the partners prove that they have lived in Belgium or another country continuously for at least one year before the application;
- or if the partners prove that they have known each other for at least two years prior to the application and provide evidence that they have maintained regular contacts by telephone, regular or electronic mail, and that they have met three times during the two years preceding the application and that these meetings have a total of 45 days or more;
- or if partners have a common child;
(b) come to live together;
(c) be both older than twenty-one years;
(d) be single and not having a lasting and stable partnership relationship with another person;
(e) not one of the persons referred to in articles 161 to 163 of the Civil Code;
(f) having made neither one nor the other the subject matter of a decision on the basis of Article 167 of the Civil Code, provided that the decision or invalidity has been cast in force of evidence.
3° the descendants and descendants of his or her spouse or partner referred to in 1° or 2°, who are under twenty-one years of age or who are in charge of them, who accompany or join them, provided that the foreigner joins, his or her spouse or the registered partner concerned has the right of custody and, in case of shared custody, provided that the other holder of the right of custody has given his or her consent;
4° the ascendants and ascendants of the spouse or partner referred to in 1° or 2°, who are at their charge, who accompany or join them.
The King sets out, by deliberate decree in the Council of Ministers, cases in which a partnership registered on the basis of a foreign law must be considered equivalent to a marriage in Belgium.
§ 3. The family members referred to in § 2 who are citizens of the Union have the right to accompany or join the citizen of the Union referred to in Article 40, § 3, as long as they fulfil the condition set out in Article 41, paragraph 1^er. Family members who are not citizens of the Union must fulfil the requirement set out in Article 41, paragraph 2.
§ 4. The family members referred to in § 2 who are citizens of the Union have the right to accompany or join the citizen of the Union referred to in Article 40, § 4, paragraph 1^er, 1° and 2°, for a period of more than three months as long as they fulfil the condition set out in article 41, paragraph 1^er. Family members who are not citizens of the Union must fulfil the requirement set out in Article 41, paragraph 2.
The citizen of the Union referred to in Article 40, § 4, paragraph 1^er, 2°, must also prove that it has sufficient resources so that the members of his family referred to in § 2 do not become a charge for the social assistance system of the Kingdom during their stay, and a health insurance covering all the risks to his family members in the Kingdom. As part of the assessment of resources, it is taken into account the personal situation of the Union's citizen, which includes, inter alia, the nature and regularity of his income and the number of members of his or her family.
The citizen of the Union referred to in Article 40, § 4, paragraph 1^er, 3°, may be accompanied or joined only by family members referred to in § 2, paragraph 1^er, 1° and 2°, as well as by children or children of family members referred to in 1° and 2°, who are at his or her charge, provided that they satisfy, as the case may be, on the condition of article 41, paragraph 1^er or 2. »
Art. 9. Section 40ter of the Act, inserted by the Act of 25 April 2007, is replaced by the following:
"Art. 40ter. The provisions of this chapter apply to members of the family of a Belgian, provided that:
- members of the family referred to in Article 40 bis, § 2, paragraph 1^er1° to 3°, which accompany or join the Belgian;
- members of the family referred to in Article 40 bis, § 2, paragraph 1^er4°, which are the fathers and mothers of a minor Belgian, who establish their identity by means of an identity document and who abrupt or join the Belgian.
With regard to family members referred to in Article 40 bis, § 2, paragraph 1^er1° to 3°, the Belgian national must demonstrate:
- that it has stable, sufficient and regular livelihoods. This condition is deemed to be met where the means of subsistence are at least equal to one hundred and twenty per cent of the amount referred to in Article 14, § 1^er, 3°, of the law of 26 May 2002 concerning the right to social integration. Assessment of these means of subsistence:
1° takes into account their nature and their regularity;
2° does not take into account the means derived from complementary assistance schemes, i.e., integration income and supplement of family allowances, or financial social assistance and family allowances;
3° does not take into account the waiting allowances or the transition allowance and only takes into account the unemployment benefit provided that the spouse or partner concerned can prove that he is actively seeking work.
- that it has decent housing which allows it to receive the member(s) of its family who ask to join it and who meets the conditions laid down in a particular property for rent as a principal residence as provided for in Article 2 of Book III, Part VIII, Chapter II, Section 2 of the Civil Code, and that it has health insurance covering the risks in Belgium for itself and members of its family. The King determines, by order deliberately in the Council of Ministers, how the foreigner demonstrates that the immovable property meets the requirements.
With regard to persons referred to in Article 40 bis, § 2, paragraph 1^er, 1°, both spouses or partners must be more than twenty-one years old.
Under the conditions referred to in section 42ter and section 42quater, a member of the family of a Belgian may also be terminated when the conditions set out in paragraph 2 are no longer met. »
Art. 10. In section 42 of the Act, replaced by the Act of 25 April 2007, § 1^er is replaced by the following:
« § 1^er. The right of stay of more than three months in the Kingdom is recognized as soon as possible and no later than six months after the date of the application as provided for in § 4, paragraph 2, to the citizen of the Union and to the members of his family who are under the conditions and for the duration determined by the King, in accordance with European regulations and directives. Recognition takes into account all the elements of the file.
In the event of non-compliance with the condition of stable and regular means of subsistence referred to in Article 40 bis, § 4, paragraph 2 and Article 40ter, paragraph 2, the Minister or his delegate shall determine, according to the needs of the citizen of the Union joined and members of his family, the means of subsistence necessary to support their needs without becoming a burden for the public authorities. The Minister or his or her delegate may, for this purpose, be communicated by the foreigner and by any Belgian authority all documents and information relevant to the determination of that amount. »
Art. 11. Section 42ter of the Act, inserted by the Act of 25 April 2007, is replaced by the following:
"Art. 42ter. § 1^er. Unless the family members of a citizen of the Union who are themselves citizens of the Union, are themselves entitled to a right of residence as referred to in Article 40, § 4, or resatisfies the conditions referred to in Article 40bis, § 2, the Minister or his delegate may terminate their right of residence for the first three years following the recognition of their right of residence as a member of the following citizen
1° it is terminated the right of residence of the citizen of the Union that they have accompanied or joined;
2° the citizen of the Union whom they accompanied or joined leaves the Kingdom;
3° the citizen of the Union whom they accompanied or joined dies;
4° marriage with the citizen of the Union that they have accompanied or joined is dissolved or cancelled, it is terminated the registered partnership referred to in Article 40bis, § 2, paragraph 1^er, 1° or 2°, or there is no more common installation;
5° the family members of a citizen of the Union referred to in Article 40, § 4, paragraph 1^er, 2° or 3°, constitute an unreasonable charge for the social welfare system of the Kingdom.
During the third to the fifth year of their stay as a member of the family of the citizen of the Union referred to in Article 40, § 4, paragraph 1^er3°, a motivation based on an element referred to in paragraph 1^er will be sufficient only if this element is supplemented by elements indicating a situation of complacency.
When deciding to end the stay, the Minister or his delegate takes into account the length of the stay of the person concerned in the Kingdom, its age, its state of health, its family and economic situation, its social and cultural integration and the intensity of its relationship with its country of origin.
§ 2. Cases referred to in § 1^erParagraph 1^er, 2° and 3°, are not applicable to the children of the citizen of the Union who reside in the Kingdom and are enrolled in an educational institution or the parent who has the effective guardianship of children until the end of their studies.
§ 3. The Minister or his or her delegate may, if necessary, verify whether the conditions for the exercise of the right of residence are met. »
Art. 12. Section 42quater of the Act, inserted by the Act of 25 April 2007, is replaced by the following:
"Art. 42quater. § 1^er. In the following cases, the Minister or his or her delegate may terminate, during the first three years following the recognition of their right of residence, the right to stay of family members of a Union citizen who are not themselves citizens of the Union and who reside as members of the family of the Union citizen:
1° it is terminated the right of residence of the citizen of the Union that they have accompanied or joined;
2° the citizen of the Union whom they accompanied or joined leaves the Kingdom;
3° the citizen of the Union whom they accompanied or joined dies;
4° marriage with the citizen of the Union that they have accompanied or joined is dissolved or cancelled, it is terminated the registered partnership referred to in Article 40bis, § 2, paragraph 1^er, 1° or 2°, or there is no more common installation;
5° the family members of a citizen of the Union referred to in Article 40, § 4, paragraph 1^er, 2° or 3°, constitute an unreasonable charge for the social welfare system of the Kingdom.
From the third to the fifth year of their stay as a member of the family of the citizen of the Union referred to in Article 40, § 4, paragraph 1^er3°, a motivation based on an element referred to in paragraph 1^er will be sufficient only if this element is supplemented by elements indicating a situation of complacency.
When deciding to end the stay, the Minister or his delegate takes into account the length of the stay of the interested person in the Kingdom, his age, his state of health, his family and economic situation, his social and cultural integration and the intensity of his or her relationship with his or her country of origin.
§ 2. Cases referred to in § 1^erParagraph 1^er, 2° and 3°, are not applicable to the children of the Union citizen who stay in the Kingdom and are enrolled in a school or the parent who has custody of the children until the end of their studies.
§ 3. The case referred to in § 1^erParagraph 1^er, 3°, is not applicable to family members who have spent at least one year in the Kingdom, provided they prove that they are employed or not employed in Belgium, or that they have sufficient resources for themselves and their family members as set out in Article 40, § 4, paragraph 2, so as not to become a charge for the social assistance system, and a health insurance covering the whole person in Belgium
§ 4. Without prejudice to § 5, the case referred to in § 1^erParagraph 1^er, 4°, is not applicable:
1° where the marriage, registered partnership or joint installation lasted, at the beginning of the judicial process of dissolution or annulment of the marriage or at the end of the registered partnership or joint installation, at least three years, of which at least one year in the Kingdom. In the event of a marriage cancellation the spouse must also have been in good faith;
2° or where the right of custody of the children of the citizen of the Union who reside in the Kingdom has been granted to the spouse or partner who is not a citizen of the Union by agreement between the spouses or partners referred to in Article 40 bis, § 2, paragraph 1^er1° or 2°, or by judicial decision;
3° or where the right to visit a minor child has been granted to the spouse or partner referred to in section 40 bis, § 2, paragraph 1^er, 1° or 2°, which is not a citizen of the Union, by agreement between the spouses or partners referred to in Article 40bis, § 2, paragraph 1^er, 1° or 2°, or by judicial decision, and the judge has determined that this right of custody must be exercised in the Kingdom for as long as necessary;
4° or where particularly difficult situations require it, for example, where the family member demonstrates that he has been the victim of domestic violence and of acts of violence referred to in articles 375, 398 to 400, 402, 403 or 405 of the Criminal Code, in connection with the marriage or registered partnership referred to in article 40 bis, § 2, paragraph 1^er1° or 2°;
and as long as the persons concerned demonstrate that they are employed or non-employed workers in Belgium, or that they have sufficient resources referred to in Article 40, § 4, paragraph 2, in order not to become a charge for the social assistance system of the Kingdom during their stay, and that they have health insurance covering all the risks in Belgium, or that they are members of a family already constituted in the Kingdom of a person.
§ 5. The Minister or his delegate may, if necessary, verify whether the conditions of the right of residence are met. »
Art. 13. Section 42s of the Act, inserted by the Act of 25 April 2007, is replaced by the following:
"Art. 42septies. The Minister or his or her delegate may refuse to enter or terminate the right of residence of a citizen of the Union or members of his or her family when he or she has used false or misleading information or false or falsified documents, or have resorted to fraud or other illegal means, which have been decisive for the recognition of that right. »
Art. 14. In the single annex to the same Act, inserted by the Act of 25 April 2007, the words "International Health Regulation No. 2 of 25 May 1951, of the World Health Organization; are replaced by the words "International Health Regulation of the World Health Organization, signed in Geneva on May 23, 2005".
CHAPTER 3. - Final provision
Art. 15. This section applies to employment agreements concluded with Morocco, Turkey, Algeria, Tunisia, Serbia, Montenegro, Croatia, Macedonia and Bosnia and Herzegovina, approved by the Act of 13 December 1976 approving bilateral agreements on the employment in Belgium of foreign workers.
A national of one of the countries referred to in paragraph 1^er, may only draw rights in the corresponding employment agreement if:
1° the person joined has acquired his right to stay in the Kingdom before going to the Kingdom because of an occupation within and under the conditions of this employment agreement, and that;
2° the bond of filiation, the marital bond or the registered partnership is preexistent at the arrival of the person joined in the Kingdom.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 8 July 2011.
ALBERT
By the King:
Deputy Prime Minister and Minister of Employment and Equal Opportunities, responsible for the Migration and Asylum Policy,
Ms. J. MILQUET
The Minister of the Interior,
Ms. A. TURTELBBOM
The Secretary of State for Migration and Asylum Policy,
Mr. WATHELET
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
____
Note
(1) 2010-2011 session.
House of Representatives
Documents. - Proposal by Ms. Lanjri et al., 53-443 - No. 1 - Amendments, 53-443 - No. 2-10 - Opinion of the State Council, 53-443 - No. 11 - Erratum, 53-443 - No. 12 - Amendments, 53-443 - No. 13 and 14 - Opinion of the Council of State, 53-443 - No. 15 - Amendments, 53-443 - No. 16 and 17 - Report, 53-443 - No. 18 - Text adopted by the Committee, 53-443 No. 19 - Amendments, 53-443 - No. 20 - Text adopted in plenary meeting and transmitted to the Senate, 53-443 - No. 21.
Full report. - 26 May 2011.
Senate
Document. - Project not referred to by the Senate, 5-1049 - No. 1.