On 8 February 2024, the Belgian Federal Parliament adopted a law introducing a procedure for stateless people to obtain a residence permit in Belgium, which entered into force on 1 September 2024. The following blog post analyses the adopted law, providing insights on how the procedure will protect stateless people and outlining its main shortcomings.

Statelessness determination by the family courts
To date, stateless people can only be formally recognised in Belgium by petitioning one of the six family courts, based on article 572bis of the judicial code. The procedure before the family courts is not a contentious procedure, but the public prosecutor is heard and provides advice in writing. The burden of proof throughout is on the stateless person applying for recognition. If refused, the judgment can be appealed. The decision whether a person is stateless is declaratory, as the judge determines whether the 1954 Convention definition of a stateless person is met.
Once recognised as stateless, the stateless person is not granted any rights in Belgium, except for the right to naturalisation after two years of lawful residence. To obtain a right of residence, the stateless person can only apply for a regularisation on humanitarian grounds based on article 9bis of the immigration law of 15 December 1980, which is decided by the Immigration Office. A negative decision by the Immigration Office can subsequently be appealed before the Council for Alien Law Litigation. This residency right offers very little protection, as the procedure is considered as an exception and the decision is a discretionary one. No conditions or criteria are laid down in the law, thus leaving the administration with a large margin of appreciation and causing legal uncertainty.
A new administrative procedure for residence permits
Following the newly adopted law, a specific, administrative procedure has been created for stateless people to obtain a right of residence. To apply for a residence permit, the stateless person must apply to the Immigration Office , who must request the advice of the Commissioner General for Refugees and Stateless Persons (CGRS) regarding the fulfilment of the required conditions.
There are several stringent cumulative conditions that the applicant must meet, and the burden of proof lies on the applicant. There are also exclusion clauses, meaning the Immigration Office will not consider applications inter alia if the applicant cannot demonstrate that they were lawfully resident for more than three months (or as an applicant for international protection).
If the Immigration Office renders a positive decision, the stateless person is granted a temporary residence permit for five years, after which a permanent residence permit is granted (article 17). This right of residence gives rise to other important rights, including the right to work and the same social security benefits as Belgian citizens. Furthermore, recognised stateless people are granted the right to family reunification with their spouse or registered partner and minor children, who can be granted a right of residence in Belgium.
Judgments of the Constitutional Court
In its judgment of 17 December 2009 (no. 198/2009), the Constitutional Court ruled that a discriminatory distinction exists between recognised refugees and certain recognised stateless people insofar the immigration law does not provide a right of residence for stateless people, like it does for recognised refugees in article 49 of the immigration law of 15 December 1980. The court described certain recognised stateless people as those who have lost their nationality outside their will and can demonstrate that they have no legal and sustainable right of residence in another State with which they have connections. The new law clearly echoes these conditions set out by the court.
The court confirmed its view in the judgment of 11 January 2012 (no. 1/2012), in which it clarified that the discrimination flows from the lack of any legal provision in the immigration law providing a right of residence for stateless people. Furthermore, the court stated that it was the responsibility of the legislator to determine the conditions according to which certain stateless people can obtain a residence permit in Belgium. In its judgment of 22 February 2018 (no. 18/2018), the Constitutional Court ascertained that the legislator failed to comply with the two previous judgments. With the new law, the Parliament aimed to remedy that failure.
A laudable achievement
With the new right of residence for stateless people, Belgium joins a small group of European States that have implemented a specific residence permit for stateless people, such as France, Italy, Spain and Hungary. Although the 1954 Convention does not explicitly provide for a right of residence, UNHCR urges States to implement such a right in its Handbook on Protection of Stateless Persons. Without a right of residence, other 1954 Convention rights such as the right to work and the right to health care, would be jeopardised. Belgium has been a party to the 1954 Convention since 1960. By implementing a right of residence for stateless people, Belgium brings its legislation in line with its international obligations.
It is evident that the new law creates important possibilities for stateless people in Belgium, as they derive various rights from their recognition by the Immigration Office. The new residence permit also offers greater legal certainty for stateless people, compared to the residence permit on humanitarian grounds. For the latter, no criteria are laid down in the law, allowing for arbitrary decisions. With respect to the new residence permit, the Immigration Office renders a positive decision as soon as the six cumulative conditions, set out in the law, are met.
Moreover, where the Immigration Office alone declares the application admissible, it has a legal duty to request the advice of the CGRS, which already has some expertise in statelessness matters in the context of asylum applications. The family courts, on the other hand, generally lack any expert knowledge on statelessness. Therefore, an administrative procedure is preferred over the competence of the judiciary in terms of expertise, but also in terms of costs and duration. Strangely, however, the statelessness procedure before the family courts will remain in place. While stateless people do not need a judgment from the family court to apply for the residence permit, the Immigration Office must respect a judgment from the family court if one has been rendered previously.
Shortcomings in the legal framework
While the new right of residence is an achievement, the procedure is at times too strict and not in the interest of the stateless person. Foremost, the cumulative conditions that must be met to obtain a residence permit on the ground of statelessness significantly limit the group of eligible stateless people. While the 1954 Convention only imposes one condition to enjoy the rights under the Convention, i.e. that the stateless person meets the definition of Article 1, the new law adds five conditions to that list. Moreover, the burden of proof to demonstrate that all those conditions are met is entirely on the stateless person seeking recognition. Some of these conditions may be very difficult to prove (e.g. the inability to obtain the nationality of or residence in another State). A member of Parliament pointed out this difficulty and introduced an amendment to provide for a shared burden of proof, but this was rejected by the Parliament.
The new right of residence is only intended for stateless people who have a connection with Belgium. As such, the application is rejected when the stateless person cannot demonstrate that they were lawfully residing. However, due to the very nature of statelessness, many stateless people find themselves in an unlawful situation, especially when they are not eligible for refugee status. It is possible and even likely that a stateless person has lived in Belgium for years, but that their application for a residence permit on humanitarian grounds was denied. In that situation, the stateless person will not be able to regularise their stay through the new procedure, which is clearly not in their best interest. While a member of Parliament raised a similar concern, it was not properly addressed by the Secretary of State for asylum and migration.
This requirement is also prompted by the belief that the residence permit for stateless people should remain subsidiary to the residence permit for refugees. In many cases, stateless people will have to apply for international protection first, to be eligible for the new procedure. This requirement leads to a contradictory situation. On the one hand, the Secretary of State recognised that the situation of refugees and stateless people is fundamentally different. But on the other hand, the law requires stateless people to first apply for international protection, while in some cases it will be clear from the outset that the stateless person is not a refugee. This is not only frustrating for the applicant, but also leads to unnecessary procedures.
The situation becomes even more dire when the Dublin Regulation comes into play. If stateless people must first apply for international protection, it is possible that they are transferred to another EU Member under the Dublin Regulation (i.e. if they have applied for international protection in another Member State). Such a transfer is not in the best interest of the stateless person, especially when they are not necessarily a refugee. The Secretary of State justified this requirement by referring to the fact that nearly all EU Member States have ratified the 1954 Convention and that thus stateless people can invoke protection under the 1954 Convention in the Member State concerned. However, this is a mere theoretical reasoning. Practice clearly shows that only a limited number of EU Member States have effectively implemented a statelessness determination procedure, and even fewer States grant a specific right of residence to stateless people.
Finally, the procedure itself presents some procedural shortcomings. Like some members of Parliament pointed out, the law does not foresee the possibility of appeal against a negative decision of the Immigration Office – although by default an appeal may be lodged with the Council for Alien Law Litigation (CALL) - and does not render hearing the applicant mandatory. Both procedural safeguards are strongly recommended by UNHCR. Furthermore, the applicant is not granted any rights throughout the procedure, nor do they receive any certificate demonstrating their application. Hence, if a stateless person is unlawfully present in Belgium, their presence remains unlawful during the procedure, and they remain at risk of detention and expulsion. This is problematic as the procedure can take up to six months. If the stateless person submits the application while being detained, the Immigration Office can process the application according to an accelerated procedure of maximum thirty days. However, during these thirty days the detained stateless person is not granted any additional protection and remains at risk of expulsion.