In ruling no. 302.421 of February 28, 2024, the Conseil du Contentieux des Etrangers (CCE) overturned a decision by the Office des Etrangers (BIZ). The decision concerned the revocation of a combined permit on the basis of alleged fraud, but the elements invoked were deemed insufficiently substantiated.
Strict burden of proof in cases of fraud
The CCE pointed out that the IBZ is bound by a strict burden of proof when revoking a right of residence under article 74/20, §2 of the Residence Act. Withdrawal is a discretionary power and mere doubt is not sufficient. The CCE analyzed the concrete elements on which the IBZ based its decision:
- Clerical employment contract :
The employment contract was known at the time of the application and accepted at that time. The IBZ could therefore not base a new claim for fraud on this agreement.
- Company car and unrealistic residence:
The fact that, according to the IBZ, a pastry chef does not have a company car and accommodation is not sufficiently substantiated and does not prove intent to commit fraud.
- Relationship to employer :
The fact that the plaintiff's sister works for the same company does not prove fraudulent intent, according to IBZ. IBZ's formulation that this raises a "serious doubt" is insufficient.
- Jurisdiction :
IBZ is not responsible for assessing admission to work. The Flemish Region, which is responsible for the work component, assessed the application positively. There is no indication that the Region ever considered revoking the admission to work.
Conclusion
The CCE concludes that IBZ's doubts as to the applicant's employment are insufficient to establish fraud. There is no objective finding of falsity or misrepresentation, nor any intentional element indicating fraudulent behavior.
This ruling emphasizes that the IBZ must treat fraud complaints with caution, and cannot make decisions based on mere suspicion or a lack of competence regarding other aspects of an application.
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