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Belgium/ Constitutional Court/ [2019] 111/2019

Liga voor Mensenrechten, Ligue des Droits de l’Homme, Ordre des barreaux francophones et germanophone, Association pour le droit des Etrangers, and others

Deciding Body type:
National Court/Tribunal
Deciding Body:
Constitutional Court
Decision date:
18/08/2019

Key facts of the case:

The case concerns the Law of 15 March 2017, which amends the Law of 15 December 1980 on access to the territory, residence, establishment and removal of aliens, in order to abolish the ex officio suspensory appeal in a decision taken on grounds of public order or national security to protect the public order and to strenghten the national security. The applicants argue that the Law of 15 March 2017 introduces a clear difference of treatment between three categories of foreigners: the foreigners for whom the decisions are not based on compelling reasons of national security, the foreigners for whom the decisions are based on compelling reasons of national security, and those foreigners whose stay was terminated for serious reasons of public order and national security. The applicants put forward that such a difference is not based on an objective and relevant criterion and not proportionate to the objective pursued. The applicants are of the opinion that as a result of the contested amendments to the law, the government that takes the expulsion decision can now decide by itself whether or not the deported alien has an ex officio suspensory appeal (it can decide entirely autonomously in which cases there are compelling reasons of national security or serious reasons of public order and national security). Furthermore, the applicants allege that the right to an effective remedy is violated for aliens who are at risk of an infringement of a number of key human rights, including the right to physical integrity or the right to family life. They also highlight the violation of the right to a fair trial. The lack of a definition of “compelling reasons of national security” and its different use in the Law of 15 December 1980 is also highlighted by the applicants. Additionally, they consider that the “overriding reasons of national security” are not such as to justify the enforcement of an expulsion decision against a foreigner during the examination of his/her appeal. Rather than abolishing the suspensive action, the legislator could have chosen to shorten the appeal period, to introduce a scheme for accelerated handling of appeals, or to oblige the foreigner to regularly report to the authorities or to transfer a financial guarantee. Key legal question: The case concerns the application for the total or partial annulment of the Law of 15 March 2017 amending articles 39/79 of the Law of 15 December 1980 on access to the territory, residence, establishment and removal of aliens.

Outcome of the case:

The Constitutional Court rejects the appeals. It argues that, considering the case law of the Court of Justice, it must be assessed on a case-by-case basis whether or not there are “overriding reasons of national security”. The decision must take into account all the circumstances of the case at hand. The Constitutional Court continues that such a prescribed individual assessment precludes the definition of “overriding reasons of national security” in absolute terms in national law by a definition that would prevent a specific assessment.