The main issue for stateless people in Belgium remains the absence of the automatic granting of a residence permit to those recognised as stateless by the judiciary, as well as the lack of a (temporary) residence permit for the duration of the statelessness determination procedure. As a consequence, stateless people are forced to reside illegally in the country.
As already highlighted by NANSEN, this leads to a major protection gap as it precludes access to rights under the 1954 Convention (right to work, social allowances, education, social security, housing). In addition, it puts them at risk of detention and removal.
Highlighting key gaps using the Statelessness Index
NANSEN is a centre of independent expertise on refugee law based in Brussels. Our mission is to develop and make available quality legal aid for all those in need of international protection so that their fundamental rights are effectively upheld. To achieve this objective, we combine technical legal expertise with an interdisciplinary approach to asylum. NANSEN was set up in 2017 by a group of lawyers and academics experienced in the field of refugee, human rights and migration law.
NANSEN partnered with ENS to add Belgium to the Statelessness Index in March 2020, providing an analysis of Belgian law, policy and practice on the protection of stateless people and the prevention and reduction of statelessness. The Statelessness Index highlights various issues regarding the protection of stateless people in Belgium including: the risk of arbitrary detention due to lack of identification of (potentially) stateless people; difficulties regarding registration of stateless people in the civil registries; lack of accurate data on the stateless population; and shortcomings in the judicial procedure for determining statelessness (for example, long delays, lack of uniformity, and a lack of expertise among judges, lawyers and civil servants).
In Belgium, statelessness determination and the granting of leave to remain are handled by separate authorities. The judiciary is the competent authority for determining whether a person is stateless. The Immigration Office then decides on the application for a residence permit. Both procedures can last several months, sometimes years.
When it comes to granting a residence status to stateless persons, Belgian legislation in not in line with the rulings of the Constitutional Court. The court held that the difference in treatment regarding the right to residence between recognised refugees and recognised stateless persons who involuntarily lost their nationality and cannot obtain a legal and durable right of residence in another State leads to discrimination, since people who find themselves in comparable situations are treated differently.
Protection gaps for stateless people must be addressed through law reform
Civil and labour courts have ruled on several occasions that the Immigration Office must grant a residence permit and that public welfare centres must grant social security allowances to recognised stateless persons in Belgium. While this is positive, it is nowhere near sufficient, since existing procedures can be lengthy, and there is no guarantee of success, in particular because of a lack of quality legal aid.
There is an urgent need for law reform to ensure that Belgium fulfils its international obligations under the 1954 Convention to protect stateless persons on its territory. The law should provide for the right to a residence permit throughout the entire procedure, from the moment they file an application for determination of statelessness, until they receive a decision from the Immigration Office. A residence permit and other 1954 Convention rights must also be guaranteed to all those recognised as stateless in Belgium.
In 2014, the Belgian Government committed to simplifying and centralising the judicial procedure for determining statelessness and to offering a residence permit to recognised stateless persons. While some progress has been made on centralising the procedure, no progress has yet been made regarding the granting of a residence permit, despite this having been among the objectives of several successive governments.
The most recent step in this direction is a draft bill that was filed in 2019. Among other measures, it provided for the granting of a residence permit for recognised stateless persons, and for the granting of temporary leave to remain for the duration of the procedure to apply for a residence permit before the Immigration Office. While the draft legislation was broadly positive, there were concerns about the fact that it did not provide for a residence permit during the judicial procedure to determine statelessness. At the time, NANSEN and ENS wrote a joint submission (available here in French), which strongly welcomed the bill, and set out a series of recommendations for strengthening it, to ensure its compliance with international standards and best practice on statelessness specific protection regimes.
An opportunity for change
Elections were held in Belgium in May 2019, and an interim government took office in 2020 to handle the COVID-19 response, with discussions to form a fully functioning government resuming in the summer. This is an opportunity to put the issue of protection for stateless people back on the agenda and to remind decision-makers of Belgium’s obligations under the 1954 Statelessness Convention and of the rulings of its own Constitutional Court.
Like many marginalised populations, stateless people in Belgium have very likely been severely affected by the Covid-19 pandemic, in particular due to their lack of access to housing, social security, social allowances and the labour market.
NANSEN therefore calls for a new legislative initiative to grant a residence permit and 1954 Convention rights to all people recognised as stateless, as well as a temporary residence permit and protection during the judicial procedure to determine statelessness, and the procedure before the Immigration Office to acquire a residence permit.