Workshop « Children on the move » Migrant families Unequal treatment of children in family reunification regulations Brussels, 26th September 2013 ENOC Conference Sarah D’HONDT Chair Belgian National Commission for the Rights of the Child Interim Professor in Migrant Law (partim), Leuven University

2 Discrimination of children by Belgian family reunification legislation?  Reverse discrimination of Belgian children: unequal treatment on the ground of mobility  Other forms of unequal treatment: on the ground of nationality, residence status, family ties or means of subsistence and housing of the entitled person

3 Reverse discrimination  Definition: unequal treatment on the ground of mobility = the right to family reunification of a French citizen with his Algerian family is larger in Belgium than for a Belgian citizen with his Algerian family  Belgian law transposed European right to free movement and thus easier family reunification, but limited it recently to citizens to which this EU regulation applies: those who circulate  ½ of the EU-Countries - Belgium: °2008; completed in 2011

4 Reason: getting migration under control  Family reunion is the most important migration ground  Family reunion with Belgian citizens prevails on family reunion with other nationalities  why? The former Nationality law made it ‘too’ easy to obtain Belgian Nationality  former Turkish and Moroccan citizens became Belgian and applied the easy family reunion rules  Fight against sham marriages and sham partnerships  Fight against Deprivation of Opportunities (underprivileged people) and integration problems  Fight against pressure on social security system

5 Exception: parent of a Belgian child  Court of Justice EU: Zambrano: no restrictions to family reunion in Belgium of a Belgian child with its third-country-parents  BUT: Belgian Council of State, advice preceeding the legislation of 2011: problem subsists for all other Belgians: “this implies that a Belgian citizen should leave Belgium in order to exercise his fundamental right to family life”

6 Consequences  Belgian citizen ± treated as 3rd country citizen (sometimes even more strict)  Consequences for all (besides consequences restricted to adults): New material conditions for family reunion: also for child of a Belgian citizen: Stable, sufficient and regular means of life = 120% minimex, excl social aid (= 1307 €) Stable, sufficient and regular means of life = 120% minimex, excl social aid (= 1307 €) !! not required when family reunion by 3rd country national with its child when travelling alone !! not required when family reunion by 3rd country national with its child when travelling alone !! Not required when pre-existing family of refugee/subsidiary protection !! Not required when pre-existing family of refugee/subsidiary protection Suitable housing Suitable housing Health insurance Health insurance  Possible side-effect: new Europe-routes

7 Discrimination?  Constitutional Court (Spanish Supreme Court 2010: YES!)  Moreover: maybe also breach of: art. 7 and 9 Charter of Fundamental Rights EU? art. 7 and 9 Charter of Fundamental Rights EU?  rather not (yet): see Dereci (2011) art. 8 and 14 ECHR? art. 8 and 14 ECHR?  rather not (yet): see Moustaquim (1991)

8 Other forms of unequal treatment  On the ground of nationality, residence status, family ties or means of subsistence and housing of the entitled person  Unclear criteria decide on children’s right to live with their parent  Compatible with Art. 10 j° 9 CRC?: obligation of States parties to deal with applications for the purpose of a family reunification in a “positive, humane and expeditious manner”

9 Unequal treatment on the ground of nationality  parent is EU-citizen versus third country citizen

10 Waiting period: unequal treatment on the ground of residence status  Waiting period of 12 months of unlimited right to stay in Belgium  Exemptions: planning of limited stay of the whole familyplanning of limited stay of the whole family Pre-existing family of refugee/person with subsidiary protection … if (see next slide)Pre-existing family of refugee/person with subsidiary protection … if (see next slide)

11 Waiting period: unequal treatment on the ground of family relation  … if quick demand +  if inside marriage or equivalent partnership  not if inside ‘cohabitation légale’, ‘PACS’, partnership according to Dutch, Swiss, Luxemburg, Spanish, Norwegian, Swedish law  What about the ECHR Marckx-principle (1979): equal treatment of children inside and outside marriage?  + if… (see next slide)

12 Waiting period: again unequal treatment on the ground of residence status  … if entitled to unlimited stay  versus limited stay: First stage of subsidiary protection First stage of subsidiary protection Medical regularisation Medical regularisation

13 Condition of means of life  Exemption: Same ‘type’ of refugees and subsidiary protection holders Same ‘type’ of refugees and subsidiary protection holders Also: child travelling alone, if… Also: child travelling alone, if… the parent has an unlimited right to residencethe parent has an unlimited right to residence + child out of marriage or equivalent partnership+ child out of marriage or equivalent partnership  Reasonableness principle of child travelling alone?  risk of negative side- effects

14 Conclusion  Belgian and many other European migration laws need a lecture in the light of The best interests of the child Art. 3 CRC Art. 3 CRC CJEC, Chakroun (2010): specific elements of the demand for family reunion should be investigated, especially according to the best interests of the child CJEC, Chakroun (2010): specific elements of the demand for family reunion should be investigated, especially according to the best interests of the child Even if Belgian migration law (art. 12bis, §7) states that a case-by-case approach is obligatory