The UK referendum to leave the EU almost exactly split voters in the UK. However, the Brexit decision united British citizens on one singular topic — the sudden uncertainty in their future in the EU.
One of the first tasks of the Brexit negotiators is to clarify this matter, especially for those who have made their lives abroad. Unfortunately, this question still looms.
This situation has forced many British nationals to look for their own solutions, one of which is applying for another European nationality. In Belgium, where large numbers of British citizens are employed by European and international institutions, the demand for Belgian nationality has increased considerably. But now British officials are faced with Belgian bureaucracy as well as complex and often inadequate Belgian legislation, making it impossible for many to acquire Belgian nationality. International immigration firm Fragomen explains how the British can navigate this complex field.
Applying for Belgian nationality for UK citizens
Since a change in legislation in 2013, the normal route to Belgian citizenship is through a nationality declaration. This administrative process is open to everyone that falls within one of the grounds prescribed in the Code on Belgian nationality. These grounds can be marriage, long-term residency, age, integration into Belgian society or being the parent of a Belgian child.
In addition to these specific grounds, one must also meet two general admissibility criteria regarding legal residence in Belgium at the time of the nationality declaration and in the years immediately prior to the declaration. First, one must show a legal and uninterrupted stay in Belgian territory of five or 10 years immediately prior to the application; second, one must show a right to unlimited residence in Belgium at the time of the application.
In setting out these admissibility criteria, the Belgian legislators aimed to simplify the nationality procedure as well as ensure migration neutrality in the process. In many ways they succeeded: someone who has worked and resided in Belgium for five continuous years is, for example, generally considered to be integrated into Belgian society and can acquire Belgian nationality without additional tests or diplomas.
Special Identity Card for UK citizens
Many UK citizens in Belgium meet these conditions and have been able to successfully acquire Belgian nationality, but for officials of European and international organisations, the issue is more complicated.
The main problem these officials face lies in the fact that employees of European and international institutions usually do not receive a “normal residence permit” in Belgium but are granted a special identity card (special ID) provided by the Ministry of Foreign Affairs. Unfortunately, this special ID is not taken into account when it comes to one’s legal stay in Belgian territory prior to the nationality declaration.
The reason for this is found in the legislation and regulations on Belgian nationality. As mentioned, the Code on Belgian nationality foresees general criteria regarding one’s legal residence in Belgium. The wording of these criteria is rather broad; in an attempt to clarify this general and rather unclear wording, legislators issued a Royal Decree in 2013 indicating the specific types of Belgian residence titles that should be taken into account as a legal residence on the Belgian territory in the framework of the nationality legislation.
Unfortunately, there is no mention of the special ID in this Royal Decree. The situation became even more complex when a circulaire, a government document issued in 2013, deemed the list in the Royal Decree to be exhaustive. This complex set of rules determines that EU officials in Belgium are largely ineligible for Belgian nationality.
Solutions for UK citizens applying for Belgian citizenship
Excluding the special ID card as proof of residence has been found to be unreasonable and to go beyond the purpose of the Code on Belgian Nationality. However, in practice, special ID card holders still run into a bureaucratic wall.
The Belgian government does not seem too eager to find a solution for this problem, as no political steps have been or are being taken to open the Belgian nationality procedure to special ID card holders. The Minister of Justice in Belgium stated that there is no intention to change the current legislation, while the Crown Prosecutor in Brussels indicated that a strict interpretation of the legislation will remain in place. The Belgian Prime Minister also announced that further action will not be possible, as long as the Brexit negotiations do not bring clarity. This unclear and discriminatory legislation will thus remain in place.
Despite the lack of political steps, there have been hopeful developments for British nationals in this specific situation, as jurisprudence is slowly ruling in their favour.
The Court of First Instance in Ghent already stated in 2016 that the list mentioned in the Royal Decree cannot be deemed to be exhaustive. The Court based its decision on the wording of the Royal Decree, but also on the fact that a circulaire, in which the list is labelled as exhaustive, cannot bind the court. This specific judgement did not touch upon the special ID, but the judge did indicate that other residence titles than the ones mentioned in the Royal Decree can be taken into account.
More importantly, in 2017, the Court of First Instance in Leuven stated specifically that the special ID card can be regarded as a legal residence in the context of the nationality legislation. The ruling in Leuven states that no restrictive character can be assigned to the summary of residence documents and that the special ID card can thus be taken into account in the nationality procedure. In addition, the Court in Leuven touched on the discrimination of European staff members, which is a hopeful development for British citizens. In this last case, the British national successfully obtained Belgian nationality.
Furthermore, the Immigration Office, which is the federal authority competent for residency, does take into account residence on the basis of the special ID card in the context of EU permanent residence. In an official statement on 20 February 2013, the Immigration Office indicated why residence on the basis of a special ID should be taken into account as legal stay in Belgium. This statement specified legal stay for EU permanent residence, but it can be taken into account when it comes to Belgian nationality as well. This view was also followed by the court of First Instance in Walloon Brabant in 2017, when the judge transposed this view into nationality legislation, granting a special ID holder the Belgian nationality.
Until the Belgian legislator comes with new legislation or a new interpretation, there will be no clear solutions for UK nationals residing on the basis of a special ID card. Nationality applications are not accepted or denied when a special ID card is in place. UK nationals can, however, turn to the Belgian courts. Jurisprudence is not unanimous, but favourable judgements create a basis for UK nationals wishing to take the matter forward.
It is advised that EU officials supplement their Belgian nationality application with a cover letter, guiding both the communal authorities as the Prosecutor’s Office towards a correct interpretation of the legislation and to appeal against negative decisions.