The Influence of Public Order on Residency Rights

According to the newspaper The Latest News , since the enactment of the Immigration Act amendment on February 24, 2017, aimed at strengthening the protection of public order and national security, the Secretary of State responsible for immigration affairs has, in April 2018, revoked the residency rights of at least 112 criminals and terrorists with foreign nationality.

Indeed, the Immigration Act was significantly tightened again in 2017. From now on, any foreigner, even those without any ties to their country of origin, and for example, those born in Belgium or who came to Belgium at a very young age, can still be sent back to the country of which they hold nationality. Every foreigner, without any distinction, now risks being banished from Belgium by the authorities. The conditions of the law are very flexible and therefore quickly met.

THE LEGAL PROVISION ON PUBLIC ORDER AND NATIONAL SECURITY

Art. 44bis of the Immigration Act (as amended by the law of 24/02/2017) states the following:

"§ 1. Notwithstanding paragraphs 2 and 3, the minister or his delegate may end the residence of citizens of the Union and their family members and order them to leave the territory for reasons of public order, national security, or public health.

§ 2. The minister may end the residence of citizens of the Union and their family members who have obtained permanent residence rights under articles 42quinquies and 42sexies and order them to leave the territory, only for serious reasons of public order or national security.

§ 3. The minister may end the residence of the following citizens of the Union and order them to leave the territory, only for compelling reasons of national security:
1° citizens of the Union who have resided in the territory of the Kingdom for the preceding ten years;
2° minors who are citizens of the Union, except if the decision is necessary for the child's best interest, as defined in the United Nations Convention on the Rights of the Child of November 20, 1989.

§ 4. When the minister or his delegate considers making a decision as referred to in paragraphs 1, 2, or 3, he takes into account the duration of the Union citizen or his family member's residence in the territory of the Kingdom, his age, health condition, family and economic situation, social and cultural integration into the Kingdom, and the extent of his ties with his country of origin."

COMMENTARY ON LEGISLATION

Based on the aforementioned provision, the Immigration Office can revoke the residence permit of a foreign national and order them to leave Belgium if there are reasons of public order, national security, or public health.

When these foreigners additionally have a permanent right of residence, there must be "serious" reasons. Public health also disappears as a possible reason. Only public order and national security remain. One might wonder what the added value of this provision could be. Does this mean that the right of residence can be revoked and an order can be given to the foreigner who does not have a permanent right of residence, even when there are no serious reasons available? It seems that the legislator requires 'a little bit more' for one foreigner to make the aforementioned decision.

The foreigner most protected against expulsion is the European who has resided in Belgium for at least the past ten years or a European who is a minor. It should be noted that a third-country national who has resided in Belgium since birth for, say, 99 years is less protected than the minor European who has just arrived or who has resided in Belgium for the past 10 years. The right of residence of the latter category can only be revoked if there are compelling reasons of national security.

In various judgments, the Council for Immigration Disputes has confirmed the revocation of the right of residence or forced removal from Belgium by the Immigration Office and dismissed the appeals against these decisions as unfounded. The aforementioned legal provision article 44bis of the Immigration Act is indeed very clear. The legislator clearly intended to repatriate as many foreigners as possible. The only requirements set are the existence of reasons of public order, the existence of 'serious' reasons of public order, or the existence of 'compelling' reasons of public order. What is understood by these terms is left open, although it seems that for some foreigners, somewhat higher demands are made, namely for European nationals who have resided in Belgium for at least ten years and minor Europeans. In their case, as mentioned, a compelling reason of national security is required.

However, it should be noted that there is no reason to assume that this latter category, let alone any other category of foreigners, would enjoy significant legal protection. The main question is how the aforementioned concepts ("public order...", "serious reasons of public order..." and "compelling reasons of national security") are interpreted and applied in practice and in law.

These are all very vague concepts, which raises the question of the extent to which there is any legal certainty. Whether there will be any legal protection against an administration that judges that you better leave the country or your right of residence is revoked, will depend on the application of the aforementioned provision, not only by the Immigration Office but more importantly by the Council for Immigration Disputes and the Council of State.

LEGALITY SUPERVISION OF THE COUNCIL FOR IMMIGRATION DISPUTES

The legal protection against the administration is already very limited. Against a decision of the Immigration Office, one can file an annulment and/or suspension appeal with the Council for Immigration Disputes, an administrative court in accordance with Article 145 of the Constitution. Therefore, it is an illusion to think that there would be an equal fight before this court. Just from its peculiar "political" status, one can question the independence of this court. After all, this is not a court that rules on civil rights.

So, what legal protection is there? What is the Council for Immigration Disputes competent for? In exercising its legal supervision, the Council is only competent to check whether the authorities based their decision on the correct factual data, whether they assessed it correctly, and/or whether their conclusion was not unreasonable based on this data.

To obtain annulment, one must allege a violation of the law. One can also allege a violation of the principles of proper administration, such as the violation of the duty of care incumbent on the administration. The duty of care principle requires the government to prepare its decisions carefully and to base them on correct fact-finding. Often, a violation of the formal motivation duty is alleged. The formal motivation duty follows from Articles 2 and 3 of the law of 29 July 1991 and from Article 62 of the Immigration Act of 15 December 1980. The legal and factual motives underlying the contested decision must be explicitly stated in the decision. A violation of the substantive motivation duty can also be alleged. This would mean that the contested decision was made based on incorrect data, in a manifestly unreasonable manner, or exceeding the discretionary power of the Immigration Office.

The Council for Immigration Disputes will only consider the data that the administration had at the time of making its decision. Therefore, the Council cannot take into account new documents submitted after the initiation of an annulment appeal.

The Council for Immigration Disputes will not assess the facts themselves or anew, by putting itself in the place of the Immigration Office, but will assess whether the Immigration Office did not violate the law by making the contested decision. The Council will ask: Could the Immigration Office make this decision? Did it assess the facts as apparent from the file correctly? Did it not act manifestly unreasonably? It is the legal subject who must prove that his claim is founded. This will often be no easy task, as it is assumed that the decision made by the Immigration Office is in accordance with the law.

Below, two judgments of the Council for Immigration Disputes are discussed where Article 44bis of the Immigration Act was applied.

TERMINATION OF RESIDENCE RIGHT DUE TO CRIMINAL CONVICTIONS

In a judgment from late 2017, the United Chambers of the Council for Immigration Disputes ruled on the legality of a decision terminating the residence of a Moroccan national for serious reasons of public order or national security.

What were the facts? The concerned foreigner was sentenced five times within thirteen years, three times for violations of drug legislation. However, one could also say that in a span of 16 years (from the first legal stay to the decision of the Immigration Office), there were five convictions. Starting from his illegal arrival in Belgium, the period is 22 years. The foreigner was born in Morocco. He has been residing in Belgium since 1995 and obtained a residence permit in 2001 through marriage to a Belgian national. No children were born from this relationship, and the couple divorced in 2005. In 2006, he remarried a Moroccan national. His Moroccan wife came to Belgium the same year and obtained a residence permit. Four children were born from this second marriage, and his wife was pregnant with a fifth child during the proceedings before the Council for Immigration Disputes.

His first conviction was in 2003 for illegal weapon possession, resulting in a fine of 495.79 euros. In late 2005, he was convicted of drug trafficking, receiving a suspended 12-month prison sentence and a fine of 5500 euros. A third conviction was for receiving stolen goods.

The contested decision is the result of an individual investigation in which the State Secretary considered all objective and relevant data from the administrative file. The decision explains why the applicant's personal behavior poses a serious threat to a fundamental interest of society and why the risk of recidivism, despite positive detention progress and prospects for employment after release, has not yet subsided. The Council distinguishes between the assessment of the sentencing court within an individual criminal execution trajectory and the State Secretary's prerogative to take residence measures in the context of public order and national security.

The Council also notes that the State Secretary's decision, in line with European jurisprudence, demonstrates a balancing of interests. Given the particular circumstances of this case, the Council does not find it manifestly unreasonable that the State Secretary attaches significant weight to the danger posed by the applicant to public order and thus decides that the interests of the applicant's family, including minor children, do not outweigh the preservation of public order (Council for Immigration Disputes, 22 December 2017, No. 197 311).

REMOVAL OF FOREIGN NATIONAL DUE TO A POTENTIAL THREAT TO PUBLIC ORDER

Solely based on their behavior, it can be concluded that a foreign national poses such a threat to public order or national security that terminating their residence and the decision to issue an order to leave the territory are justified. It is not required that the concerned foreign national has already been effectively convicted.

Referring to recent case law of the European Court of Human Rights, the Council has judged that the general situation in Morocco is not such that removing a Moroccan national with ties to extremist organizations to that country automatically constitutes a violation of Article 3 of the ECHR.

However, a rigorous individual investigation is required. (Council for Immigration Disputes, 16 November 2018, No. 212 381)

Source: website of the Council for Immigration Disputes 16/11/2018

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