In an important ruling (no. 131/2024) of 21 November 2024, the Constitutional Court ruled that the requirement for a valid identity document for parents applying for family reunification with a minor Belgian child is contrary to the Constitution.
Under article 40ter of the Residence Act (Vw), a parent may only prove his or her identity by means of a valid identity document. However, the Court held that this requirement, without the possibility of proving identity by other means of evidence, infringes constitutional rights, in particular the principle of equality (Articles 10 and 11) and the principle of non-discrimination (Articles 11 and 12):
Principle of equality (articles 10 and 11 of the Constitution),
The right to private and family life (article 22 of the Constitution),
The interests of the child (article 22 bis of the Constitution).
Disproportionate restriction of rights
The Court noted that neither the legislature nor the Council of Ministers had demonstrated how requiring a valid identity document contributed to the objectives of the legislation, such as migration management. Furthermore, the lack of alternatives has disproportionate effects on the right to family reunification. This particularly affects Belgian minors, for whom the right to family reunification is essential.
No impact of the legislative amendment
Although Article 40ter Vw has been amended since the appeal was lodged by the Law of 10 March 2024, the conclusion of the judgment remains unchanged. The requirement for a valid identity document has not been amended and the unconstitutionality remains.
Conclusion of the judgment
The judgment emphasises the importance of family life and the best interests of the child in family reunification. It obliges the legislature to provide alternatives to proof of identity so that fundamental rights are not disproportionately restricted.
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