QUESTIONNAIRE FOR THE NATIONAL REPORT ON THE IMPLEMENTATION OF THE DIRECTIVE : LONG-TERM RESIDENTS OF 25 NOVEMBER 2003

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1 QUESTIONNAIRE FOR THE NATIONAL REPORT ON THE IMPLEMENTATION OF THE DIRECTIVE : LONG-TERM RESIDENTS OF 25 VEMBER 2003 IN: Belgium by Prof. M.-Cl. Foblets (Marie-Claire.Foblets@ant.kuleuven.be) Date: 7 November 2007 The purpose of the Directive is to determine the terms for granting and withdrawing longterm resident status and the rights pertaining thereto and terms for the exercise of rights of residence by long-term residents in other Member States. FIRST PART 1. RMS OF TRANSPOSITION AND JURISPRUDENCE Q.1.A. Identify the main (because of its content) norm(s) of transposition and indicate its legal nature This question includes even norms adopted before the adoption of the directive but ensuring its transposition (what is called a pre-existing norm in the table of correspondence). Quote the norm of transposition and not only the norm modified by it (the same is true in case of existence of a code of aliens law) About legal nature in the table below: legislative refers to a norm adopted in principle by the Parliament; regulation refers to a norm complementing the law and adopted in principle by the executive power; circular or instructions refer to practical rules about implementation of laws and regulations and adopted in principle by the administrative authorities Please duplicate the table below if there is more than one MAIN norm of transposition General comment: In the different tables below, it is unclear what is meant by number. This table is about: a text already adopted a text which is still a project to be adopted TITLE: (legislative) Law modifying the Law of 15 December 1980 concerning access to the territory, residence, establishment and removal of foreigners DATE: 25 April 2007 NUMBER: DATE OF ENTRY INTO FORCE: Has not yet entered into. The entry into will be regulated by royal decree. However should also be noted that the modification will at the latest enter into (even in absence of the 42

2 mentioned royal decree) on June 1 st 2008 (This is, as specified in the law, the first day of the thirteenth month after the publication of the law). PROVISIONS CONCERNED (for example if the norm is not devoted only to the transposition of the concerned directive): The Law is especially aimed at transposing: - Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents; as well as - Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: 10 May 2007 (p ) LEGAL NATURE (indicate a cross in the correct box): LEGISLATIVE: REGULATION: CIRCULAR or INSTRUCTIONS: The Law can be found on the following website: Q.1.B. List the others norms of transposition by order of importance of their legal nature (first laws, secondly regulations; thirdly circulars or instructions): This question includes even norms adopted before the adoption of the directive but ensuring its transposition (what is called a pre-existing norm in the table of correspondence). Quote the norm of transposition and not only the norm modified by it (the same is true in case of existence of a code of aliens law) General comment: Considering the deadline, the overview of the other norms of transposition is based on what was notified electronically to the Secretariat general of the European commission concerning the transposition of the Directive 2003/109/CE. This list was not completed in view of the number of norms concerned and the instructions received. Koninklijk besluit nr. 38 van 27/07/1967 houdende inrichting van het sociaal statuut der zelfstandigen Date 27/07/

3 Date of entry into Provisions concerned Social statute self-employed persons Reference of 29/07/1967 Regulation Gesetz vom 19/03/1971 über die Gleichwertigkeit ausländischer Diplome und Zuegnisse Date 19/03/1971 Provisions concerned Equality of foreign diplomas and certificates Reference of 12/06/1971 Date 20/07/1971 Königlicher Erlass vom 20/07/1971 zur Festlegung der Bedingungen und des Verfahrens für die Zuerkennung der Gleichwertigkeit ausländischer Diplome und Zeugnisse Provisions concerned Equality of foreign diplomas and certificates Reference of 5/08/1971 Regulation Date 8/07/1976 Organieke wet van 08/07/1976 betreffende de openbare centra voor maatschappelijk welzijn Provisions concerned Social welfare services 44

4 Reference of 5/08/1976 Date 29/06/1981 Wet van 29 juni 1981 houdende de algemene beginselen van de sociale zekerheid voor werknemers Provisions concerned Social security for employees Reference of 2/07/1981 Loi du 29/06/1983 concernant l'obligation scolaire Date 29/06/1983 Provisions concerned Compulsory school attendance Reference of 06/07/1983 (p ) Date 7/11/1983 Décret du 04/11/1983 réglant, pour la Communauté française, les allocations et les prêts d'études, coordonné le 7 novembre 1983 Provisions concerned Study loans and grants Reference of 04/02/1984 (p ) 45

5 Date 27/03/1985 Décret du 27/03/1985 modifiant le décret réglant, pour la Communauté française, les allocations et les prêts d'études, coordonné le 7 novembre 1983 Provisions concerned Modification of Decree of 07/11/1983: Study loans and grants Reference of 16/04/1985 Date 5/07/1985 Décret du 05/07/1985 modifiant le décret réglant, pour la Communauté française, les allocations et les prêts d'études, coordonné le 7 novembre 1983 Provisions concerned Modification of Decree of 07/11/1983: Study loans and grants Reference of 28/01/1986 Date 27/03/1986 Décret du 27/03/1986 modifiant le décret réglant, pour la Communauté française, les allocations et les prêts d'études, coordonné le 7 novembre 1983 Provisions concerned Modification of Decree of 07/11/1983: Study loans and grants Reference of 19/04/

6 Date 17/07/1987 Décret du 17/07/1987 modifiant le décret réglant, pour la Communauté française, les allocations et les prêts d'études, coordonné le 7 novembre 1983 Provisions concerned Modification of Decree of 07/11/1983: Study loans and grants Reference of 3/09/1987 Date 16/12/1988 Arrêté de l'exécutif de la Communauté française du 16/12/1988 réglant l'agrément des services d'aide aux familles et aux personnes âgées et l'octroi de subventions à ces services Provisions concerned Recognition and subsidizing of services for family aid and for elderly people Reference of 28/12/1988 (p ) Regulation Date 21/12/1988 Besluit van de Vlaamse Executieve houdende de organisatie van de arbeidsbemiddeling en de beroepsopleiding van 21/12/1988 Provisions concerned Employment-finding and professional training Reference of 14/01/1989 (p ) Regulation 47

7 Date 12/06/1991 Provisions concerned Universities Reference of 4/07/1991 Decreet van 12/06/1991 betreffende de universiteiten in de Vlaamse Gemeenschap Date 7/07/1994 Décret du 07/07/1994 concernant l'agrément des institutions pratiquant la médiation de dettes Provisions concerned Recognition of institutions involved in mediation of debt Reference of 28/07/1994 (p ) Date 13/07/1994 Decreet van 13/07/1994 betreffende de hogescholen in de Vlaamse Gemeenschap Provisions concerned Colleges of higher education Reference of 31/08/1994 Date 19/12/1996 Décret du 19 décembre 1996: programme portant diverses mesures en matière de finances, emploi, environnement, travaux subsidiés, logement et action 48

8 Provisions concerned Programme concerning finance, work, environment, housing and action Reference of 31/12/1996 (p ) Date 18/07/1997 Décret du 18/07/1997 relatif aux centres de planning et de consultation familiale et conjugale Provisions concerned Family planning and aid Reference of 23/09/1997 (p ) Date 30/06/1998 Décret du 30/06/1998 visant à assurer à tous les élèves des chances égales d'émancipation sociale, notamment par la mise en oeuvre de discriminations positives Provisions concerned Social emancipation - Positive discrimination Reference of 22/08/1998 (p ) Dekret vom 31/08/1998 über den Auftrag an die Schulträger und das Schulpersonal sowie über die allgemeinen pädagogischen und organisatorischen Bestimmungen für die Regelschulen Date 31/08/

9 Provisions concerned Education: organisation, pedadogical provisions Reference of 24/11/1998 Date 2/03/1999 Provisions concerned Adult education Reference of 21/08/1999 Decreet van 02/03/1999 tot regeling van een aantal aangelegenheden in het volwassenenonderwijs Date 26/04/1999 Dekret vom 26/04/1999 über das Regelgrundschulwesen Provisions concerned Education Reference of 06/10/1999 (p ) Date 31/05/1999 Décret du 31/05/1999 portant certaines réformes en matière d'enseignement supérieur Provisions concerned Reforms concerning higher education 50

10 Reference of 25/08/1999 (p ) Date 18/07/2001 Décret du 18/07/2001 relatif à l'aide sociale aux justiciables Provisions concerned Welfare Reference of 15/08/2001 (p ) Date 26/05/2002 Wet van 26/05/2002 betreffende het recht op maatschappelijke integratie Provisions concerned Right to social integration Reference of 31/07/2002 (p Date 28/06/2002 Decreet van 28/06/2002 betreffende gelijke onderwijskansen Provisions concerned Equality in the field of education Reference of 14/09/

11 Date 28/02/2003 Decreet van 28/02/2003 betreffende het Vlaamse inburgeringsbeleid Provisions concerned Integration of foreigners Reference of 8/05/2003 Date 8/05/2003 Décret du 08/05/2003 modifiant le décret réglant, pour la Communauté française, les allocations et les prêts d'études, coordonné le 7 novembre 1983 Provisions concerned Modification of Decree of 07/11/1983: Study loans and grants Reference of 11/06/2003 (p ) Décret du 17/07/2003 relatif à l'insertion sociale Date 17/07/2003 Provisions concerned Social integration Reference of 28/07/2003 (p ) Date 12/02/2004 Décret du 12/02/2004 relatif à l'accueil, l'hébergement et l'accompagnement des personnes en difficultés sociales 52

12 Provisions concerned Relief for persons with social difficulties Reference of 26/04/2004 (p ) Date 30/04/2004 Decreet van 30/04/2004 betreffende de studiefinanciering en studentenvoorzieningen in het hoger onderwijs Provisions concerned Student grants and student facilities in Colleges of higher education Reference of 28/07/2004 Date 19/05/2004 Décret du 19/05/2004 relatif à la mise en oeuvre du principe de l'égalité de traitement Provisions concerned Equal treatment Reference of 07/06/2004 (p ) Date 27/05/2004 Décret du 27 mai 2004 relatif à l'égalité de traitement en matière d'emploi et de formation professionnelle Provisions concerned Equal treatment: work and professional training 53

13 Reference of 23/06/2004 (p ) Date 27/05/2004 Décret du 27/05/2004 relatif à l'agrément et au subventionnement des services "Espaces- Rencontres" Provisions concerned Recognition and subsidizing of meeting places Reference of 27/07/2004 (p ) Date 14/07/2006 Decreet van 14/07/2006 tot wijziging van het decreet van 28/02/2003 betreffende het Vlaamse inburgeringsbeleid Provisions concerned Integration of foreigners Reference of 9/11/2006 Besluit van de Vlaamse Regering van 15/12/2006 betreffende de uitvoering van het Vlaamse inburgeringsbeleid Date 15/12/2006 Provisions concerned Integration of foreigners Reference of 29/12/

14 Regulation Q.2. Q.2.A. THIS QUESTION IS IN PRINCIPLE ONLY FOR FEDERAL OR ASSIMILATED MEMBER STATES LIKE AUSTRIA, BELGIUM, GERMANY, ITALY, SPAIN Explain which level of government is competent to adopt the norms of transposition. Please include your answer in the tables below LEGISLATIVE RULES COMPETENCES OF THE FEDERAL/CENTRAL LEVEL: Belgium is a federal State comprising regions and communities, which have their own legislative powers, executive powers and administrations (art. 1 Constitution). 1 The regions have been assigned the competence to deal mostly with economic matters, while the communities regulate culture, education and personal affairs, such as the reception and integration of immigrants. 2 The federal legislative authority retains, however, the competency for immigration law. COMPETENCES OF THE COMPONENTS: EXPLANATIONS IF NECESSARY: REGULATIONS COMPETENCES OF THE FEDERAL/CENTRAL LEVEL: COMPETENCES OF THE COMPONENTS: EXPLANATIONS IF NECESSARY: Competence by analogy with the comments provided concerning question Q.2.A. Legislative rules CIRCULAR OR INSTRUCTIONS COMPETENCES OF THE FEDERAL/CENTRAL LEVEL: COMPETENCES OF THE COMPONENTS: 1 Respectively the Flemish, Walloon and Brussels regions and the Flemish, French and German-speaking communities. 2 Art. 5 para. 1, II, 33 Special law of 8 August 1980 reforming the institutions, Belgian Official Gazette of 15 August

15 Q.2.B. In case, explain if the federal structure and the distribution of competences between the different levels pose any problem or difficulty regarding the transposition and/or the implementation of the directive. Q.3. Explain which authorities are competent for the practical implementation of the norm of transposition by taking the decisions in individual cases. Please use one table per competence concerned and duplicate it if necessary Comment: The Federal Ministry of Interior constitutes the authority which is competent for the practical implementation of the main norm of transposition (see questions Q.1.A. and Q.4). The ministries of the communities and the regions have competences concerning the transposition of articles 11 and 21 of the directive 2003/109/CE. COMPETENCE CONCERNED: CENTRAL MINISTRY OF: DIRECTION OR SERVICE WITHIN THE ABOVE MINISTRY: OTHER LEVEL OF ADMINISTRATION: IF NECESSARY, COMMENT ABOUT THE NATURE OF THE AUTHORITY (for instance if it is independent of the competent minister) COMPETENCE CONCERNED: CENTRAL MINISTRY OF: COMPETENCE CONCERNED: CENTRAL MINISTRY OF: Migration law Federal Ministry of Interior Home Affairs Office of Foreigners Affairs Rules concerning culture, education and personal affairs Competent ministries of the Flemish, French and Germanspeaking communities (Interior affairs, integration, education, equal treatment, social economy, ). Rules concerning some specific economic matters Competent ministries of the Flemish, Walloon and Brussels regions (Interior affairs, work, economy, ) and Federal Ministry of work 56

16 Q.4. A. Has the main regulation foreseen explicitly by the main norm of transposition already been adopted or not: Q.4.B. If the main norm(s) of transposition foresees the adoption of one or several regulations, indicate if they have all been adopted: If no, please indicate the missing text(s) in the table below Please use one line per missing text and duplicate it if necessary MISSING TEXTS INDICATE HERE THE MISSING TEXTS Royal Decree of 8 October 1981 concerning access to the territory, residence, establishment and removal of foreigners Add if necessary some explanations (specify in particular if the missing texts are at least under preparation or foreseen in the very near future): The Law of 15 December 1980 concerning access to the territory, residence, establishment and removal of foreigners (Hereafter named law on residence of foreigners ) was recently modified by the laws of 15 September 2006 (Transposition of the Directives 2003/86/EC, 2004/81/EC and 2004/83/EC). As a consequence, a modification of the above mentioned Royal Decree of 8 October 1981 was executed (Arrêté royal du 27 avril 2007 modifiant l'arrêté royal du 8 octobre 1981 sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers ; Arrêté royal du 17 mai 2007 fixant des modalités d'exécution de la loi du 15 septembre 2006 modifiant la loi du 15 décembre 1980 sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers ; and Arrêté royal du 27 avril 2007 fixant la date d'entrée en vigueur de la loi du 15 septembre 2006 modifiant la loi du 15 décembre 1980 sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers et fixant la date visée à l'article 231 de la loi du 15 septembre 2006 réformant le Conseil d'etat et créant un Conseil du Contentieux des Etrangers). Entry into as from June 1st After this modification of the Royal Decree will have entered into, and after the next modification of the Law on residence of foreigners with a view on transposing, amongst others, the Directive 2003/109/EC has been voted by parliament, the Royal Decree of 1981 will have to be modified again. 57

17 SECOND PART 2. TRANSPOSITION OF THE DIRECTIVE IN NATIONAL LAW In each answer, please specify the relevant provisions of the national law Q. 5.A. (personal scope of the Directive) Article 3(1) and Article 4(1) - Has the term lawful residence been specified in the national law and if yes, how is that term specified? The reference to the term lawful residence was merely copied from the Directive in the national law (Article 15bis Law of 15 December 1980 concerning access to the territory, residence, establishment and removal of foreigners as modified by the law of 25 April 2007, hereafter named Modified law of 1980). - Is it possible to have lawful residence without a residence permit? The Modified law of 1980 takes reference to entitlement to enter or stay in the country, not to the actual possession of a residence permit. Even periods during which the foreigner can not display a residence permit, can be taken into account. It suffices he/she is entitled to enter the territory and/or to stay. Q. 5.B. Article 3(2) - Does the Directive in your country apply to categories of third country nationals who have been excluded by Article 3(2)? If yes, please specify to which categories. - Does your national law exclude other categories of temporary admitted third country nationals than the categories mentioned in Article 3(2)(e) (au pairs, seasonal workers and posted workers)? If yes, how is the term formally limited residence permit defined? In article 15bis Modified law of 1980, reference is made to a specific provision in the law of 15 December 1980 concerning access to the territory, residence, establishment and removal of foreigners, hereafter named Law of 1980 (Art. 14, par. 2 Law of 1980). It states in a general way that the specific residence status can only be granted to foreigners who are already granted or admitted a residence right for an unlimited duration. 58

18 However, residence for a limited period is taken into account in the case of a foreigner who was granted the long-term residence status in another member state, and who comes to Belgium and who, after five years, applies for the long-term residence status in Belgium (Art. 15bis, par. 1, al. 3 Modified law of 1980). Q. 5.C. Article 3(3) (bilateral and multilateral agreements) - During the transposition has reference been made to the bilateral and multilateral agreements mentioned in Article 3(3)? If yes, with which effect? Q. 6.A. Article 4(1) - Has a right to the long-term resident status been codified in the legislation or does granting the status depend on the discretion of national authorities? Article 15bis, par. 1 of the Modified law of 1980 stipulates, in line with article 7, par. 3 of the Directive, that the foreigner who meets the conditions has a right to obtain the long-term resident status. Q. 6.B. Article 4(2) - Has the special rule on students in Article 4(2) been transposed in the national law? If yes, how? Yes, the special rule on students in Article 4(2) has been transposed (Art. 15bis, par. 1, al. 2 Modified law of 1980). As mentioned in the Directive, half of the periods of residence covered by a student permit will be taken into account. As mentioned above (see question Q.5.B), it is relevant to mention here that reference is made to a specific article in the law of 15 December 1980 (art. 14, par. 2). This article states in a general way that the long-term residence status can only be granted to foreigners who are already granted or admitted a residence right for an unlimited duration. - Are periods of lawful residence in situations covered by letters b, c and d taken into account if the third country national has a non-protection status at the time of application for the long-term resident status? The law specifically excludes refugees and foreigners who reside on the basis of a subsidiary form of protection ((Art. 15bis, par. 2 Modified law of 1980). Foreigners who reside on the basis of temporary protection are excluded because of the general reference to article 14 of the law of 15 December 1980 (see question Q.5.B). However, as mentioned in the answer to question Q.5.A. the law does not provide in a further specification of the notion of lawful residence. Foreigners to whom article 3(2), b and c of the Directive apply, who fall in a non-protection status will not be able to bring into account 59

19 the periods of residence under the protection status, since these statuses only grant them a temporary right of residence in Belgium. As mentioned above, the law requires that the foreigner has resided for five years on the basis of an unlimited residence right (general reference to article 14 of the law of 15 December see question Q.5.B). However, as mentioned above, half of the periods of residence covered by a student permit will be taken into account. Furthermore, a special rule applies to the long-term residents who have acquired the status in another member state (see further - Art. 61/7, par. 1, al. 2 Modified law of 1980). At this stage, it is unclear whether in practice the above mentioned category of foreigners to whom article 3(2), d of the Directive applies, who fall in a non-protection status, will be entitled to bring into account their residence to obtain the long-term residence status. The law has to be specified further by regulation (Royal decree Still to be drafted). - How long can the absences from the territory be and how are they calculated? In line with the Directive, the law states that periods of absence from the territory shall not interrupt the five year period under the condition that these periods are shorter than six consecutive months and do not exceed in total 10 months within the five year period. Furthermore, the period of absence is taken into account in the calculation of the five year period (Art. 15bis, par. 4 Modified law of 1980). Q. 6.C. Article 4(3) - How are the specific and exceptional reasons specified in the national law? The Belgian legislators decided not to make use of the specifications as provided in sub-par. 2 and 3 of article 4, par. 3 of the Directive. Q. 7.A. (income requirement) Article 5(1)(a) - How is the income requirement of this provision specified in the national law? The law states that the foreigner has to provide evidence that he/she has stable, regular and sufficient resources to maintain himself/herself and the members of his/her family. He/she must also have a sickness insurance covering the risks in Belgium (Art. 15bis, par. 3 Modified law of 1980). The mentioned resources must, according to the law, at least match the income level that is guaranteed under the law providing the recourse to social benefits. The minimal amount will be further specified in a regulation (Royal decree Still to be drafted). The explanatory memorandum accompanying the legislative modification refers in this context to the amount determined by article 14 of the law of 26 May 2002 concerning the right to social integration (modified by article 104 of the Programme-law of 9 July 2004). - Have certain types of income been excluded? 60

20 If yes, please specify. However, one should notice that the minimal amount will be further specified in a regulation (Royal decree Still to be drafted). - Is the level of resources higher or lower than the level of social assistance for nationals? The level of resources must at least reach the level of social assistance provided for in the case of nationals. - Are contributions to the pension system and the tax record of the applicant taken into account? If yes, please specify how they are taken into account and what the consequences of insufficient contributions to the pension system or the tax record are. However one should notice that the minimal amount will be further specified in a regulation (Royal decree Still to be drafted). Q. 7.B. (integration conditions) Article 5(2) - Does the national law require third country nationals to comply with integration conditions to obtain the status? If yes, how is this condition specified in the national law? - Are integration facilities made available for third country nationals in order to comply with the integration conditions? If yes, who pays the costs of these facilities? The federal legislation concerning access to the territory, residence, establishment and removal of foreigners does indeed not require an obligation to meet certain integration conditions in order to obtain residence rights. Albeit one should notice that in Belgium, integration is a competence of the communities (Flemish, French and German-speaking communities), no longer of the federal State. A few years ago, the Flemish Parliament passed the so-called Vlaams Inburgeringsdecreet ( Flemish Decree on Integration - Decree of 28 February 2003 on the Flemish integration policy, 61

21 Belgian Official Gazette 8 May as modified by the Decree of 14 July 2006, 9 November 2006). Its purpose is to set up training programs for new immigrants, providing them with the necessary knowledge that will subsequently allow them to participate as citizens in the life of society. However, the obligation/right to participate in integration courses has no impact on the residence status. Q. 7.C. (family members) Article 5 - Are dependent family members required to fulfil all three conditions of Article 5 themselves? - Is there a minimum age for the issue of the long-term resident status in the national law? If yes, what is the minimum age? Q. 8.A. (public policy exception) Article 6(1) - How is the possibility to refuse to grant the status on grounds of public policy or public security specified in the national legislation? The law provides that the foreigner who meets the conditions has a right to obtain long-term resident status except when reasons of public policy or national security oppose to it (Art. 15bis, par. 1 Modified law of 1980). - Does this specification take into account the case law of the ECJ with regard to similar terms in the EC law on free movement of Union citizens? If yes, please specify. If no, what are the main differences with the case law of the ECJ? Neither the Modified law of 1980, nor the Statement of Reasons (expose des motifs/memorie van toelichting) accompanying that law makes an explicit reference to the case law of the ECJ. This issue needs to be evaluated in due time, i.e. when the transposition is completed and when Belgian case law can be studied. - Has the obligation to take into account the elements mentioned in the second sentence been codified in the national law? 62

22 If yes, how? It should however be mentioned that the statement of reasons, accompanying the Bill, makes reference to the fact that the gravity or the nature of the offence or the danger that emanates the person concerned will be taken into account, as well as the duration of the residence and the existence of links with the country of residence (see page 27 Q. 8.B. (economic considerations) Article 6(2) - Has the provision that the refusal to grant long-term resident status and similar provisions in Articles 12(2) and 17(2) can not be founded on economic considerations been codified in the national law? If yes, mention the relevant provisions. Q. 9.A. (documents and conditions; N.B. Q.17.D asks similar questions regarding the documentary evidence that has to accompany the application for a residence permit by a long-term resident in a second member state) Article 7(1) - Which documents does an applicant for the status have to produce with his application? Please specify according to the conditions required by Articles 4 and 5. The applicant has to provide evidence of the fact that he/she meets the conditions relating to the possession of stable, regular and sufficient resources and of a sickness insurance. In case his/her identity is not determined, he/she also has to provide a copy of a valid passport. Finally, the law provides in the possibility to specify the application procedure the application procedure by regulation (Royal decree Still to be drafted). - Is the applicant required to provide documentation regarding appropriate accommodation? If yes, please specify the level of accommodation required. - Is the absence of appropriate accommodation a ground for refusal of the status? 63

23 - Is the absence of a valid travel document a ground for refusal of the status? If yes, please specify As a general rule, the foreigner does not have to provide a valid travel document. However, when his/her identity is not determined, he/she has to provide a copy of a valid passport. Q. 9.B. (length of procedure) Article 7(2) - What is the time limit for making a decision on the application for the status according to the national law? The law does not provide in an time limit for making a decision on the application for the long term resident states when a foreigner is concerned who was not granted long term resident status is another member state. The application procedue will be specified by regulation (Royal decree Still to be drafted). The law only stipulates a time limit in the case of a foreigner who was granted the long-term residence status in another member state and who comes to Belgium. The decision has, in that case, to be made at the latest within a time limit of four months. This time limit can be extended with three months when the necessary documents are not provided or in exceptional cases, when the application is very complex. This extension is a decision of the Minister or his authorised representative; it must be motivated and notified to the foreigner (Art. 61/7, par. 3 Modified law of 1980) Moreover, the law provides in the possibility to further specify the application procedure by separate regulation (Royal decree Still to be drafted) (Art. 16, par. 2, al. 3 Modified law of 1980). - How is the decision on the application notified to the applicant? The law does not provide in a special rule concerning this issue. However, it provides in the possibility to specify the application procedure in more detail by regulation (Royal decree Still to be drafted) (Art. 16, par. 2, al. 3 Modified law of 1980). - What are the consequences of the decision not being made within the time limit provided in Article 7(2)? The law does not provide in a special rule concerning this issue. However, it does provide in the possibility to specify the application procedure in more detail by regulation (Royal decree Still to be drafted) (Art. 16, par. 2, al. 3 Modified law of 1980). - How is the obligation to inform the person concerned about his/her rights and obligations under this Directive implemented in the national law? 64

24 Article 17, par. 2 Modified law of 1980 states that a document is delivered to the foreigner testifying to the long-term resident's EC residence the rights and duties he/she draws from the Directive 2003/109. This document is drafted in one of the three national languages and in English (Art. 17, par. 2 Modified law of 1980). Q. 9.C. Article 7(3) - How has this clause on the obligation to grant the status been implemented in the national law? See question Q.6.A. - Does the national law provide for the possibility that the long-term resident also holds another residence status under Community Law or under national law? The national law is not entirely clear in this respect. In our interpretation of the law (more specifically of art. 17, par. 2 Modified law of 1980) the long-term resident only holds one residence status. Article 17 Modified law of 1980 states that only one residence permit is issued to the foreigner: the EC long-term residents permit. The Belgian Office of Foreigners Affaires states however that the foreigner can have both the long term residence status and the status of an established foreigner. Q. 10.A. (period of validity) Article 8(2) - What is the period of validity of the EC long-term residents permit? The law states that the period of validity of the EC long-term residents permit will be specified by regulation (Royal decree Still to be drafted) (Art. 18, par. 1, al. 2 Modified law of 1980). Next to this, the law provides that the right to reside as a long term resident is in principle unlimited (Exception is made for the cases specified in article 9 Directive Article 19 Modified law of 1980 See question Q.11.A). - Does the national law provide for automatic renewal upon expiry of the permit? The law states that the renewal of the EC long-term residents permit will be specified by regulation (Royal decree Still to be drafted) (Art. 18, par. 1, al. 2 Modified law of 1980). Q. 10.B. (form of residence permit) Article 8(3) - Is the long-term resident permit issued as a sticker or as a special document? The law states that the model of the EC long-term residents permit will be specified by regulation (Royal decree Still to be drafted) (Art. 17, par. 2, al. 3 Modified law of 1980). 65

25 - Please send us a photocopy of all sides of the relevant document. Not available yet. Q. 11.A. (loss of the status) Article 9(1) - What are the grounds for loss of the status according to the national law of your country? The foreigner loses his long-term resident status in the following cases: o He/she fraudulently acquired long-term resident status (article 18 Law of 15 December 1980). o He/she acquires the long-term resident status in another member state (article 18bis Law of 15 December 1980). o He/she has remained absent for too long, and other conditions are met (article 19 Law of 15 December 1980). o He/she is a serious threat for public policy or national security (article 20 Law of 15 December 1980). - Are these grounds compatible with Article 9(1)? Yes, these grounds are compatible with article 9(1). Furthermore, they are also in line with article 12(3) and (4) of the Directive. - Does an absence of more than twelve months from the EU result in automatic loss of the status or is a decision of the administration required before the status is lost? The law states that the conditions in which the foreigner does not lose his/her right to return after an absence of over twelve months from the territory of the Community will be specified by regulation (Royal decree Still to be drafted) (Art. 19, par. 1, al. 3 Modified law of 1980). Q. 11.B. (period of absence) Article 9(2) - Does your national law allow for a longer period of absence from the territory of the EU? If yes, please specify under which conditions. The law states that the conditions in which the foreigner does not lose his/her right to return after an absence of over twelve months from the territory of the Community will be specified by regulation (Royal decree Still to be drafted) (Art. 19, par. 1, al. 3 Modified law of 1980). 66

26 Q. 11.C. (threat to public policy) Article 9(3) - Does the national law provide for the possibility that the long-term resident is no longer entitled to maintain the status because he/she presents a threat to public policy or public security but is not expelled from the country? If yes, what are the criteria for non expulsion in those cases? If yes, which resident status will be granted to the person in these cases and under what conditions, see also Article 9(7)? Q. 11.D. (acquisition of status in another member state) Article 9(4) - Does the national law provide that the long-term resident status will be withdrawn if the person acquires such a status in another member state or after six years of absence from the territory of your country? (In case of acquisition of the long-term resident status in another member state: Art. 18bis Modified law of In case of six years of absence: Art. 19, par. 1, al. 2 Modified law of 1980) Q. 11.E. (facilitated re-acquisition) Article 9(5) - How has this Article on the facilitated re-acquisition of the long-term resident status been implemented in the national law for those who lost the status on the ground of 12 months absence from the territory? The law states that the conditions and situations in which the foreigner does not lose his/her right to return notwithstanding an absence of over twelve months from the territory of the Community will be specified by regulation (Royal decree Still to be drafted). Anyhow, the foreigner who, for this reason, loses the long-term resident status can recover this status by means of a regulation to be discussed in the council of Ministers (Art. 19, par. 1, al. 3 Modified law of 1980). Q.11.F. (expiry of the permit) Article 9(6) - Does the national law provide that expiry of the long-term resident permit does not entail withdrawal or loss of the status? - What are the legal or practical consequences of expiry of the permit? 67

27 Albeit it is not explicitly mentioned in the law, expiry of the permit does not automatically entail the loss of the status. The consequences of the expiry of the permit are especially palpable at a practical level: the foreigner has the legal obligation to possess a residence permit (e.g. in case of control by authorised persons such as police, ). Q.12.A. (procedural guarantees) Article 10(1) and Article 20 - Does the national law provide that a decision to withdraw or refuse the status has to contain the reasons for that decision? All administrative decisions of this nature have to be clearly motivated in Belgium. The legislation concerning access to the territory and residence of foreigners confirms this principle (article 62 law of 1980). - How is the decision notified to the person concerned? Special rules should in this context be provided by regulation (Royal decree Still to be drafted) (Art. 16, par. 2 Modified law of 1980). - Does the notification include a specification of the available redress procedures and the time limit for using these remedies? Special rules should in this context be provided by regulation (Royal decree Still to be drafted) (Art. 16, par. 2 Modified law of 1980). - Do the same procedural guarantees apply with respect to decisions meant in Article 20? Special rules should in this context be provided by regulation (Royal decree Still to be drafted). If no, please specify the differences. Q.12.B. (judicial review) Article 10(2) and Article 20 - Which remedies are available to challenge the refusal, withdrawal or loss of the status or the renewal of the permit? The foreigner concerned has a right to appeal the decision. The case will be brought before a professional, newly created court (Conseil du contentieux des étrangers Raad voor vreemdelingenbetwistingen) (Art. 39/1 and 39/79 Law of 1980). - Is access to a court guaranteed in such cases? 68

28 - Are these remedies effective in your judgment? Please specify your answer. The procedure to appeal administrative decisions concerning foreigners has recently been reviewed. In this context, foreigners are offered equal rights to obtain a judgement by independent magistrates. - Is there a difference between legal remedies concerning decisions meant in Article 10 and the ones in Article 20? If yes, please specify the differences. Q.13.A. (equal treatment) Article 11(1) - Does your national law explicitly provide that long-term residents shall enjoy equal treatment with nationals as regards: (For each bullet point please specify: If no, on which issues are the long-term residents excluded) Foreigners who obtained long-term resident status in Belgium are, like Belgian nationals, registered in the register of births, deaths and marriages. A first study of the relevant legislative provisions leads us to conclude that long-term residents profit from equal treatment in the fields mentioned hereafter (Access to employment; Education and vocational training; Recognition of diploma s; Social security, social assistance and social protection; Tax benefits; Access to goods and services; Free access to the entire territory of your country). However, this issue will have to be further evaluated in due time, i.e. when the transposition is completed and when Belgian case law can be studied. o Access to employment o Education and vocational training 69

29 o Recognition of diploma s o Social security, social assistance and social protection o Tax benefits o Access to goods and services o Free access to the entire territory of your country Q.13.B. (exceptions to equal treatment) Article 11(2) - Has the possibility to restrict equal treatment provided for in this clause been used in your country? If yes, please specify the restrictions. A first study of the relevant legislative provisions leads us to conclude that equal treatment in several cases requires the long-term resident has his main residence in Belgium. For instance: to obtain unemployment benefits, the foreigner must reside in Belgium. Furthermore, not all categories of foreigners can receive their Belgian pension while living abroad. To be entitled to do so, the foreigner has to be a refugee, a stateless person, a national of the European Economic Area, or a national of one of the following countries: Morocco, Algeria, Israel, Croatia, Poland, Slovenia, Tunisia, Turkey, Bosnia-Herzegovina, Macedonia, Canada, San Marino, the United States of America, or Switzerland. However, this issue will have to be further evaluated in due time, i.e. when the transposition is completed and when Belgian case law can be studied. 70

30 Q.13.C. (exercise of public authority) Article 11(1) - Has the possibility to restrict equal treatment under this clause or to exclude long-term residents from activities that entail occasional involvement in the exercise of public authorities (Article 11(1)(a)) been used in your country? If yes, how is the involvement in the exercise of public authorities defined? How does it differ from the ECJ case law on the topic for EU citizens? Article 10 of the Belgian Constitution reserves the access to certain government functions to Belgians. This general principle was however partially undermined by the ECJ case law: only activities which are linked to public authority and public security are now reserved to Belgians. Q.13.D. (social security) Article 11(4) - Has the equal treatment in respect of social assistance or social protection been restricted to core benefits? If yes, which benefits are excluded from the equal treatment? However, this issue will have to be evaluated further in due time, i.e. when the transposition is completed and when Belgian case law can be studied. Q.13.E. (equal treatment for long-term residents of another member state) Article 21(1) - Does the national law explicitly provide for equal treatment with regards to areas and benefits mentioned in Article 11 for third country nationals who have acquired the EC long-term resident status in another member state? If no, please specify the differences. Contrary to the foreigners who obtained long-term resident status in Belgium, it can be expected that the category of foreigners who acquired long-term resident status in another member state will not be registered in the register of births, deaths and marriages, but in the register of foreigners (The modalities on registration have to be specified by regulation (Royal decree Still to be drafted)). However, a first study of the relevant legislative provisions leads us to conclude that this category of foreigners also profits from equal treatment in the fields mentioned in article 11 of the Directive. Notwithstanding these remarks, this issue will have to be further evaluated in due time, i.e. when the transposition is completed and when Belgian case law can be studied. 71

31 Q.14.A. (protection against expulsion) Article 12(1) - How is this provision implemented in your national law? Article 20 law of 1980 states that the long-term resident can only be expulsed when he/she constitutes a serious threat for public policy or national security. In that event, he/she can only be expulsed by Royal decree, upon advice of the Advisory Commission for foreigners. For certain categories of foreigners more restrictive conditions have to be met before they can be expulsed. - Does the definition of serious threat to public policy or security differ from the definition used for the implementation of Article 6(1) or this Directive? If yes, please specify the differences. This issue will have to be evaluated further in due time, i.e. when the transposition is completed and when Belgian case law can be studied. Q.14.B. (relevant considerations) Article 12(3) - Does the national law explicitly provide that before taking a decision on expulsion the authorities have regard to the four factors mentioned in this clause? If yes, please mention the relevant provision of your national law. The above mentioned article 20 Law of 1980 (see question Q.14.1) refers to article 21, par. 1 and 2 of the same law. In this article 21 the possibilities to expulse certain categories of foreigners are limited: some foreigners can never be expulsed, others only in the hypothesis that they constitute a serious threat to national security. It should furthermore be mentioned that the relevant disposition of the law only indirectly addresses the issue: by stating that the age of the person concerned should be taken into account. For instance: a foreigner can never be expulsed when he arrived in Belgium before the age of 12 and has resided here since then legally and on a regular basis; when the foreigner legally resided in Belgium for at least 20 years he/she can only be expulsed when he/she constitutes a serious threat for national security. Q.14.C. (legal remedies) Article 12(4) - Which judicial redress procedure is available to the long-term residents against an expulsion decision under the national law? 72

32 The foreigner has a right to appeal the decision. The case will be brought before a court (Conseil du contentieux des étrangers Raad voor vreemdelingenbetwistingen) (Art. 39/1 and 39/79 Law of 1980). Thereafter a cassation procedure is possible (Conseil d Etat Raad van State). Q.14.D. (legal aid) Article 12(5) - Are long-term residents lacking adequate resources entitled to legal aid on the same terms as applied to nationals? If yes, please mention the relevant provision of your national law. If no, please specify the differences. The law of 23 November 1998 on legal aid (Belgian Official Gazette 22 December 1998) has in this context integrated some new articles in the Judicial Code of 10 October 1967 (Second part, book IIIbis and Fourth part, book I). Q.15. (more favourable national provisions) Article 13 - Does the national law provide for the issue of residence permits of permanent or unlimited validity on terms that are more favourable than those laid down by the Directive? If yes, please specify the categories of third country nationals benefiting from those more favourable national rules. However, the answer to this question is for the moment in our view not yet clear The law states that the model of the EC long-term residents permit will be specified by regulation (Royal decree Still to be drafted) (Art. 18, par. 1, al. 2 Modified law of 1980). - In what aspects does the residence document issued to those persons differ from the document mentioned in Article 8(3)? The answer to this question is for the moment in our view not yet clear: The law states that the model of the EC long-term residents permit will be specified by regulation (Royal decree Still to be drafted) (Art. 17, par. 2, al. 3 Modified law of 1980). - Does your national law provide for the application of Chapters I and II of the Directive to these third country nationals? 73

33 The answer to this question is for the moment in our view not yet clear: The law states that the model of the EC long-term residents permit will be specified by regulation (Royal decree Still to be drafted) (Art. 17, par. 2, al. 3 Modified law of 1980). If yes, please mention the relevant national provisions. Q.16.A. (long-term residents of another member state) Article 14(1)(2) - Does your national law provide for a residence right for long-term residents who have acquired the status in another member state who wish to exercise an economic activity, pursue studies or for any other purpose? Q.16.B. (conditions for employment) Article 14(3) - Does your country require an employment permit for long-term residents who acquired the status in another member state? The long-term residents who have acquired the status in another member state will have to provide the evidence that they have been authorised to work in Belgium and/or are officially exempted of such an authorisation (For the conditions on exemption: see further question 16.C) (Art. 61/7, par. 1, al. 2 Modified law of 1980). Q.16.C. (change of employer) Article 14(3) and Article 21(2) - Does a third country national with the long-term resident status need a work permit to change to another employer during the first year? The long-term residents who have acquired the status in another member state will have to provide evidence to the fact that they have been authorised to work in Belgium and/or are officially exempted from such an authorisation (For the conditions on exemption: see further) (Art. 61/7, par. 1, al. 2 Modified law of 1980). - After that year: The long-term residents who have acquired the status in another member state will have to provide the evidence that they have been authorised to work in Belgium and/or are officially exempted of such an authorisation (For the conditions on exemption: see further) (Art. 61/7, par. 1, al. 2 Modified law of 1980). 74