CIRCULAR NOTE THE PRIVILEGED STATUS OF THE SPOUSES AND UNMARRIED LEGAL PARTNERS OF THE STAFF MEMBERS OF DIPLOMATIC MISSIONS.

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1 K I N G D O M O F B E L G I U M F e d e r a l P u b l i c S e r v i c e F o r e i g n A f f a i r s, F o r e i g n T r a d e a n d D e v e l o p m e n t C o o p e r a t i o n Protocol Directorate P1.1 CIRCULAR NOTE THE PRIVILEGED STATUS OF THE SPOUSES AND UNMARRIED LEGAL PARTNERS OF THE STAFF MEMBERS OF DIPLOMATIC MISSIONS (16 May 2008) The Federal Public Service Foreign Affairs, Foreign Trade and Development Cooperation presents its compliments to the Diplomatic Missions established in Brussels and has the honour of informing them hereafter of the provisions concerning the privileged status of the (1) spouses and (2) unmarried legal partners of the staff members of diplomatic missions. The Federal Public Service Foreign Affairs, Foreign Trade and Development Cooperation avails itself of this opportunity to renew to the Diplomatic Missions established in Brussels the assurance of its highest consideration. To the Diplomatic Missions established in Brussels TEL. 02/ FAX 02/ INFO@DIPLOBEL.ORG WEB: EGMONT rue des Petits Carmes 15, 1000 Brussels

2 THE PRIVILEGED STATUS OF THE SPOUSES AND UNMARRIED LEGAL PARTNERS OF THE STAFF MEMBERS OF DIPLOMATIC MISSIONS 1 Spouse (16 May 2008) TABLE OF CONTENTS 1.1 Definition, 1.2 General principles for the granting of a privileged status, 1.3 The spouse is a permanent resident and/or of Belgian nationality, 1.4 Administrative formalities for obtaining a special residence permit, The spouse has the same nationality and the same type of passport as the mission staff member and function holder The spouse has the same nationality and does not have the same type of passport as the mission staff member and function holder The spouse does not have the same nationality but has the same type of passport as the staff member and function holder and issued by the sending State of the holder, The spouse does not have the same nationality and does not have the same type of passport as the mission staff member and function holder 2 Unmarried legal partner 2.1 Definition, 2.2 General principles for the granting of a privileged status, 2.3 The spouse is a permanent resident and/or of Belgian nationality, 2.4 Administrative formalities for obtaining a special residence permit. 1 Spouse 1.1 Definition In Belgium the term spouses is used for two people joined in a couple by the institution of civil marriage. In Belgium civil marriage may take place between people of the opposite sex and between people of the same sex. Polygamous marriage is considered to be contrary to public policy and morality and is therefore not accepted as legal marriage in Belgium. 1.2 General principles for the granting of a privileged status The privileged status is granted by the host State to the spouse according to the function carried out by the mission staff member, and therefore on the basis of belonging to the corresponding staff category as mentioned in the Vienna Convention on Diplomatic Relations of 18 April The mission concerned informs Protocol Directorate P1.1 at the time of the notification of arrival about the function carried out and the staff category to which the new member of its staff belongs, as well as about the family members accompanying them (majority age spouse/legal partner, children). As regards 2

3 children see the circular note on The privileged status of the children of the staff of Diplomatic Missions. In accordance with the Vienna Convention on Diplomatic Relations (1961) and according to current practices in Belgium, three conditions must be met by the spouse to be able to receive a special identity card issued by the Protocol Directorate P1.1, namely: living with the mission staff member and function holder, being dependent on the mission staff member and function holder not engaging in a gainful activity in Belgium (see circular note: Accreditation of the staff members of diplomatic missions in Belgium and of the members of their families ) Being the holder of a diplomatic passport or of a service passport of the sending State does not automatically give entitlement to a privileged status in the host State. The type of passport issued by the sending State is rather an indication of the status that the sending State wishes to be granted to its official who has been placed in a diplomatic post, but the passport is firstly a travel document. The spouse in general holds the same type of passport of the sending State as the official of the Diplomatic Mission: a valid passport, with the same type of appropriate visa issued by the Embassy of Belgium in the country of origin, and stating the exact family relationship to the holder: the staff member of the diplomatic mission. In this case, subject to all of the conditions, and if the function of the holder at the diplomatic mission is confirmed, and the staff category has been determined, a special residence permit of the same type as that of the holder will be issued to the spouse which will allow the person concerned to enjoy the same privileges and immunities. 1.3 The spouse is a permanent resident and/or of Belgian nationality It should be noted however that a special residence permit, corresponding to a privileged status, may not be issued to a Belgian spouse (even if they have dual nationality) or to a permanent resident in Belgium. A person is considered to be a permanent resident as soon as their stay in Belgium exceeds a period of six months (i.e. entered in the National Registry of Natural Persons and therefore the holder of an ordinary residence permit issued by the municipal administration of their residence). A person who terminates their stay as a permanent resident in Belgium to go abroad, may only enjoy a privileged status in Belgium under the Vienna Convention on Diplomatic Relations of 18 April 1961, after a period of one year has passed following the removal of their entry in the National Registry, and after having actually left the Belgian territory to reside abroad. 3

4 1.4 Administrative formalities for obtaining a special residence permit The spouse has the same nationality and the same type of passport as the mission staff member and function holder The administrative formalities for obtaining a special residence permit are described in our circular note entitled Accreditation of the staff members of diplomatic missions in Belgium and of the members of their families. A special identity card may be issued in accordance with current procedure but the Protocol Directorate P1.1 reserves the right to request the presentation of a certified copy of the marriage certificate and if necessary, if the certificate is not in one of the Belgian national languages (Dutch, French, German) or in English, this copy must be accompanied by a translation in one of these languages, duly legalised by the competent Belgian diplomatic or consular post The spouse has the same nationality, but does not have the same type of passport as the mission staff member and function holder Although the Vienna Convention does not require a diplomatic passport or a service passport for the spouse of a diplomat (or of another mission staff member), it is usually the case in Belgium that the Protocol Directorate P1.1 requests, with a view to the granting of a privileged status, that the spouse be in possession of the same type of official passport as the mission staff member and function holder. If the regulations of the sending State do not provide for the issuance of diplomatic passports for the spouse of a diplomatic official, or of service passports for the spouse of a staff member belonging to another category of mission staff, the Protocol Directorate P1.1 will assess the status application for the spouse on the basis of the presentation of the marriage certificate and on the basis of the information provided by note verbale by the sending State. If that is the case, the Protocol Directorate P1.1 will request that the sending State confirm the general rule of not issuing official passports to certain categories of people. If necessary, if a privileged status may not be granted because the formalities have not been complied with, the spouse will be invited to present themselves at the municipality of their residence (temporary) to put in order their stay in Belgium for the duration of the function of their entitled spouse. The Protocol Directorate P1.1 may at the request of the Mission concerned send an explanatory letter to the Immigration Office in order to support the wish of the person concerned to be entered in the register of foreigners of their municipality of residence. 4

5 1.4.3 The spouse does not have the same nationality but has the same type of passport as the staff member and function holder and issued by the sending State of the holder In this case, the general conditions in points 1.2 and apply The spouse does not have the same nationality and does not have the same type of passport of the sending State as the staff member and function holder Although the Vienna Convention does not require a diplomatic passport for the spouse of a diplomat and a service passport for the spouse of other categories of Mission staff it is usually the case in Belgium that the Protocol Directorate P1.1 requests, with a view to the granting of a privileged status, that the spouse be in possession of the same type of passport as the function holder. If the regulations of the sending State do not provide for the issuance of official passports (diplomatic passport or service passport) for a spouse who does not have the same nationality as the diplomatic official (or other staff category), the Protocol Directorate P1.1 requests that the Embassy send it an official note: (1) confirming these regulations, (2) and clearly expressing the wish to obtain diplomatic status (and the associated immunities and privileges) for the spouse of the entitled official, despite the fact that the person concerned does not have the nationality of the sending country, (3) and stipulating that the sending State undertakes, if the circumstances warrant it, to favourably consider and to decide on the requests for the lifting of the diplomatic immunity that may be made to it relating to this person and in a justified way by the host State. The Protocol Directorate P1.1 will assess the application for privileged status on the basis of the presentation of a copy of the marriage certificate (see formalities in point ) and on the basis of the information provide by note verbale by the sending State. Needless to say the host State cannot grant a privileged status if the sending State does not provide proof of the legal basis necessary for the granting of a special status. If necessary, the spouse will be invited to present themselves at the municipality of their residence (temporary) to put in order their stay in Belgium for the duration of the function of their entitled spouse. The Protocol Directorate P1.1 may at the request of the Mission concerned send an explanatory letter to the Immigration Office of the Federal Public Service Home Affairs in order to support the wish of the person concerned to be entered in the register of foreigners of their municipality of residence. 5

6 2 Unmarried legal partner 2.1 Definition Any person not legally married (see point 1.1.), but living together in a couple with another person of the opposite sex, or with another person of the same sex, in a stable and long-term relationship, is considered to be a partner. However only legal and official partners, whose partnership or cohabitation (1) has a legal basis, and (2) whose long-term relationship is officially recognised by the Ministry of Foreign Affairs of the sending State, may make an application with a view to obtaining a privileged status from the host State under the Vienna Convention on Diplomatic Relations (1961). The legal basis of a legal partnership includes any legal institution or specific contract, enacted before the Civil Registry Office of the place of residence of one of the partners or concluded before a competent official authority of the sending State or the host State, which recognises or which records the commitment of the partners to live as a couple and assume the rights and duties towards each other that arise from this partnership. By analogy with what is required of spouses with a view to obtaining a privileged status, and to avoid any discrimination, the same administrative formalities will apply for legal partners who wish to obtain a privileged status. The presentation of the same types of supporting documents may therefore be requested by the Protocol Directorate P1.1, e.g.: for partners the presentation of a copy of the civil partnership certificate (as with the marriage certificate for spouses see formalities in point ). A declaration will not suffice. A partnership whose relationship has no legal basis, i.e. de facto cohabitation may not give rise to a privileged legal status under the Vienna Convention on Diplomatic Relations (1961). De facto cohabitants must therefore contact the municipality of their place of residence to put in order their temporary stay in Belgium, after having obtained in advance the appropriate visa from the competent Belgian diplomatic or consular post for the country of origin. Polygamous partnership is considered in Belgium to be contrary to public policy and morality and is therefore not accepted as legal partnership in Belgium. 2.2 General principles for the granting of a privileged status If there is no legal marriage in the strict sense (see definition in point 1.1.), it is nevertheless necessary for the effective functioning of the staff members of diplomatic missions that a special status (with the associated immunities and privileges and therefore the legal consequences) only be granted to their partner on condition (1) that a legal basis exists and (2) that the Ministry of Foreign Affairs of the sending State fully and formally recognises the long-term relationship/union between its officials and their partner. Needless to say that in this case the host State cannot offer more than what the sending State is itself prepared to offer or to recognise. A legal partner must therefore be recognised as an official partner by the sending state if they wish to be recognised in the Belgium diplomatic system. 6

7 The couple of legal partners must therefore be duly established and in addition be recognised by the sending State and on the other hand may not be contrary to Belgian public policy. De facto cohabitation with no legal basis, does not give entitlement to a privileged status under the Vienna Convention on Diplomatic Relations (1961). In accordance with the Vienna Convention on Diplomatic Relations (1961) and the current practices in Belgium, three conditions must be met by the legal partner, by analogy with what is required for the spouse to be able to receive a special identity card issued by the Protocol Directorate P1.1, i.e.: be living with the mission staff member and holder, be dependent on the mission staff member and holder not engage in a gainful activity in Belgium (see circular note: Accreditation of the staff members of diplomatic missions in Belgium and of the members of their families ) 2.3 The partner is a permanent resident and/or of Belgian nationality It should be noted however that a special residence permit, corresponding to a privileged status, may not be issued to a Belgian legal partner (even if they have dual nationality) or to a permanent resident in Belgium. A person is considered to be a permanent resident as soon as their stay in Belgium exceeds a period of six months (i.e. entered in the National Registry of Natural Persons and therefore the holder of an ordinary residence permit issued by the municipal administration of their residence). A person who terminates their stay as a permanent resident in Belgium to go abroad, may only enjoy a privileged status in Belgium under the Vienna Convention on Diplomatic Relations of 18 April 1961, after a period of one year has passed following the removal of their entry in the National Registry, and after having actually left the Belgian territory to reside abroad. 2.4 Administrative formalities to obtain a special residence permit By analogy with what is required for spouses and taking into account the different possible partnership and cohabitation scenarios (see definitions in point 2.1.) the following administrative formalities must be complied with for legal partners with a view to obtaining the same special status as their partner, who is a staff member of the diplomatic mission and function holder. In this way the Diplomatic Mission must, for the legal partner, present the following documents at the time of the application for special status: (1) As a civil status certificate, the legal document justifying the status given and issued by the competent authorities of the sending State (i.e. the legal and official confirmation of the legal partnership / long-term relationship). See also the formalities in point If the authorities of the sending State are not able to provide this legal document (e.g. because the institution of legal partnership does not exist in their country), they must confirm this fact by note verbale from their diplomatic mission. Legal recognition of a stable and long-term relationship, which has no legal basis in the country of origin of the people concerned (see also point 2.1.), may in this case be obtained by enacting a legal cohabitation 7

8 certificate before a Belgian notary. This certificate may then be presented as the legal basis of cohabitation, recognised in Belgium. (2) An official note from the Diplomatic Mission in Brussels, which confirms that the sending State (and in this case its Ministry of Foreign Affairs) has been informed (a) of this legal partnership or of this stable and long-term relationship and (b) that this partner is recognised as the official partner and cohabitant of the staff member of the diplomatic mission in Brussels. (3) A copy of the same type of official passport (diplomatic passport or service passport issued by the sending State) as that which the sending State normally issues to the spouses of diplomats (or of the members of other categories of mission staff), stating the capacity of legal partner of the staff member concerned of the diplomatic mission. The passport must be valid and have the same time of appropriate visa issued by the competent Belgian diplomatic or consular post. If these three provisions are complied with, the legal and official partner may receive a diplomatic identity card / a special residence permit with the same immunities and privileges as their partner-function holder in the mission, in accordance with the Vienna Convention on Diplomatic Relations of 18 April If these three documents are not present, it is necessary to get in touch with the Population Department of the municipality where the person concerned resides to put in order their temporary stay in Belgium for the duration of the function of their partner, as a staff member of the diplomatic mission. Please note: The same administrative formalities apply for an unmarried legal partner who does not have the nationality of the sending State as for a spouse who does not have the nationality of the sending State (see point 1.4). 8