In an important ruling (no. 131/2024) of November 21, 2024, the Constitutional Court ruled that the requirement of 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, violates 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 child's best interests (article 22 bis of the Constitution).
Disproportionate restriction of rights
The Court notes that neither the legislator nor the Council of Ministers have demonstrated how the requirement for a valid identity document contributes 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 legislative change
Although article 40ter Vw has been amended since the appeal was lodged by the law of March 10, 2024, the conclusion of the judgment remains unchanged. Indeed, the requirement for a valid identity document has not been modified and the unconstitutionality remains.
Judgment conclusion
The ruling underlines the importance of family life and the best interests of the child in family reunification. It obliges the legislator to provide alternatives to proof of identity, so that fundamental rights are not disproportionately restricted.
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