Statewatch News Online: Belgium: Developments and issues regarding Belgian regularisation policy (CIRÉ)
28 March 2012
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Developments and issues regarding Belgian regularisation policy (CIRÉ)
On 27 January 2010, CIRÉ (Coordination et initiatives pour et avec les refugiés et étrangers) produced a presentation entitled "Quelle politique de régularisation passée, presente et à venir pour le Belgique?" (What regularisation policy in the past, present and future for Belgium?) in which it highlights key aspects to explain what regularisation entails, what approach has been adopted so far, its achievements and shortcomings, what changes are envisaged and matters that require further discussion.
It notes that it is a remedy that consists in granting authorisation to live in the country a posteriori, following a period of unlawful residence. There are six gateways for legal residence: asylum application, studies, family reunion, marriage, a "B" permit and a three-month tourist visa, outside of which people end up swelling the ranks of the sans-papiers, including after a tourist visa expires, an asylum application is rejected or if a marriage is unsuccessful.
States set the rules for regularisation and, in Belgium's case until 18 July 2009, they were governed by articles 9 bis whereby "in exceptional conditions and if the foreigner has identity documents" the mayor of the place of residence could grant permission, or due to a "lengthy asylum procedure" (since 2005) or in cases involving "families complying with some precise conditions", namely, five years' residence, an asylum application lasting longer than a year or children who have attended school for two years (March 2009). Article 9 ter allows the regularisation of a foreigner who resides in Belgium and suffer an illness that imperils their life or physical integrity, or a risk of inhuman and degrading treatment resulting from the means to treat such a disease not being available in their country of origin. Statistics on the number of regularisation applications filed and granted between 2005 and 2008 are detailed, with the grounds for residence permits including an unreasonable length of procedures, medical reasons, general humanitarian grounds, parenthood of a Belgian child and a circular concerning Afghans.
In spite of improvements and of a considerable number of regularised people over the last few years, CIRÉ describes the "permanent" regularisation policy as unclear, relying on officials' discretion, inequitable and not very realistic. The presentation notes that, for ten years, NGOs and trade unions have demanded that it be more clear, based on a transparent and equal procedure for everyone, rather than depending on the Foreigners' Office or ministry's "goodwill", for it to be realistic and to have these features on a permanent basis.
Agreements stipulated by the government in March 2009 and enacted in July 2009, include four new possibilities, some of them temporary and others on a permanent basis: a widening of the "lengthy procedure" criterion; local relations are taken into account if five years' residence and efforts to become legal are certified (between 15 September and 15 December 2009); certified presence in Belgium as of March 2007, with a job offer that has been positively assessed by the regional council (between 15 September and 15 December 2009); and details on seven types of urgent humanitarian situations to be taken into account. While figures on these developments are difficult to envisage, they are better than expected and have positive aspects as well as shortcomings. The positives include a longer list of humanitarian situations to be taken into account that is permanent, a wider interpretation of established relations, an opening for "sans-papiers" who have never demanded anything and the setting up of a commission on this matter.
The shortcomings are that the instruction is not a law and not even a circular, the two key measures are time-tied, a group has been overlooked, and there is a risk that the regularisation due to work will not be applicable to many foreigners who work without rights at present in Belgium.
Eventually, the "instruction" in question was repealed by the State Council (cabinet), although the Secretary of State and Foreigners' Office continued implementing the agreement, some Brussels councils enacting practices that raise concerns, and CIRÉ stresses the need to "re-draft the permanent requirements", review the 1980 law [on foreigners] and translate the measures to "take care of vulnerable groups" into practice. While noting that as many as 32,000 people were regularised in 2006, the paper identifies a number of grounds to justify a wider regularisation, including: posing a remedy to a restrictive protection policy and to the exploitation of sans-papiers, the discretion and narrowness of the migrant employment policy since 1974, the responsibility of the North for poverty in the South of the world that can be mitigated better through remittances than through cooperation aid, the inevitability of the presence of sans-papiers that must be governed in a respectful manner, and whether, in a situation in which goods and services circulate freely, people should as well, and if so, what intermediate stages would be needed to make this possible.
CIRÉ, "Quelle politique de régularisation passée, presente et à venir pour le Belgique?", Présentation à l'Institut Émile Vandervelde, 27 January 2001 [pdf]
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