Procedural (in)justice for EU citizens moving to Belgium: an inquiry into municipal registration practices

ABSTRACT

Moving as a French or Dutch citizen to Belgium should be easy, given the freedom of movement of EU citizens. Reality paints a different picture, however. This paper analyses the practices of Belgian municipalities and the Immigration Office as to the registration of EU workers, self-employed, jobseekers and their family members. It is based on a desk study, a survey among a sample of municipalities as well as semi-structured interviews with municipal officials, the Immigration Office and other stakeholders. The paper adopts a legal understanding of ‘procedural justice’, focusing on dimensions of equal treatment and transparency. It shows that the achievement of procedural justice for EU citizens is impaired by divergent and at times questionable practices by street-level bureaucrats. These practices indicate, among others, that varying levels of ‘deservingness’ of residence in Belgium can be observed within the category of mobile EU workers. Furthermore, increased digitalization and the use of intermediaries in the registration procedure facilitate and reinforce differential treatments among EU citizens and their family members.

KEYWORDS:

• EU workers
• family members
• procedural justice
• equal treatment
• transparency
• freedom of movement

Acknowledgments

The analysis is based on a study commissioned by the Belgian Federal Migration Centre Myria in its capacity as a so-called ‘Article 4 body’ tasked with analysing and monitoring the ‘equal treatment of Union workers and members of their family without discrimination on grounds of nationality, unjustified restrictions or obstacles to their right to free movement’.⁶⁴ It was carried out by a consortium consisting out of the law firm Fragomen, the University of Kent and Ghent University.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. For examples of reports on the experiences of EU citizens and their family members, see Ballesteros et al. (2016), Nicolau (2018) and Tryfonidou and Wintermute (2021).

2. These ‘GemCom Instructions’ consist of a Syllabus and online fiches.

3. This paper builds on a larger study commissioned by the Federal Migration Centre – Myria. The latter study also analyses the registration formalities in the Netherlands, Luxembourg, France, Germany and Italy as well as the impact of registration formalities on the access to certain social rights, such as employment and social security. For more information, see van den Bogaard et al. (2021).

4. For more detailed information on the methodology, see van den Bogaard et al. (2021), 4–5.

5. Directive 2004/38/EC of the European Parliament and 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, [2004] OJ L 158/77.

6. Art. 6, Directive 2004/38/EC.

7. Art. 7, Directive 2004/38/EC.

8. Art. 2(2), Directive 2004/38/EC.

9. Art. 3(2), Directive 2004/38/EC.

10. Art. 8(1), Directive 2004/38/EC.

11. See for further discussion, see van den Bogaard et al. (2021), Chapter 3.

12. Article 45 TFEU; Case 53/81 Levin EU:C:1982:105.

13. Case C-444/93 Megner & Scheffel EU:C:1995:44.

14. Immigration Office, Syllabus (29 June 2021), 150 (NL) / 167 (FR). See for further discussion, see van den Bogaard et al. (2021), 14–16.

15. Art. 33, 1° Royal Decree of 25 November 1991 regulating unemployment.

16. Interview with Immigration Office, 10 December 2020.

17. Eight municipalities confirm registering such applicants under the status of worker; one municipality indicates that such an applicant would not be registered.

18. Case C-413/01 Ninni-Orasche EU:C:2003:600, in which the CJEU suggested that employment of only two and a half months’ duration should be sufficient for the person concerned to be categorised as a worker for the purposes of Article 45 TFEU.

19. Immigration Office, Syllabus (29 June 2021), 150 (NL) / 167 (FR).

20. Immigration Office, Syllabus (29 June 2021), 150 (NL) / 167 (FR).

21. See for further discussion: van den Bogaard et al. (2021), 90.

22. See for further discussion: van den Bogaard et al. (2021), 92.

23. Annex 19bis.

24. Art. 8(3), first indent, of Directive 2004/38; Art. 50 §2, 1°, Royal Decree on Immigration.

25. 8 out of 32 municipalities require payslips from part-time workers with a contract for less than 12 hours a week; 7 out of 32 municipalities require payslips from workers with a temporary contract of less than 3 months.

26. See for further discussion: van den Bogaard et al. (2021), 111.

27. Case C-292/89 Antonissen EU:C:1991:80.

28. Art. 50 §2, 3°, Royal Decree on Immigration, adopting the terminology of Article 14(4)(b) Directive 2004/38 and CJEU case law.

29. Art. 50 §2, 3°, point b), Royal Decree on Immigration.

30. CALL, judgments No158838and158871of 15 December 2015; on appeal, such a reason was considered by the CALL to be contrary to the aim of Art. 40, Belgian Immigration Law, which is to allow EU citizens to stay in Belgium in order to look for work. See for further discussion: van den Bogaard et al. (2021), 19–20.

31. CALL, judgment No140965of 13 March 2015; again upholding the Immigration Office’s decision on appeal.

32. Case C-710/19G.M.A. EU:C:2020:1037.

33. Case C-710/19G.M.A. EU:C:2020:1037.

34. Case C-710/19G.M.A. EU:C:2020:1037, para. 48.

35. Interviews with municipalities A and B, 23 June 2020 and 18 September 2020.

36. Art. 2(2), Directive 2004/38/EC.

37. Art. 3(2), Directive 2004/38/EC.

38. Art. 47/2, Belgian Immigration Law provides that the provisions on family members covered by Art. 40bis are to apply to ‘other family members’.

39. Arts. 47/1 to 47/4, Belgian Immigration Law.

40. For reports of problems experienced in practice by family members, see n 1.

41. Art. 2(2), Directive 2004/38/EC.

42. Art. 4, Royal Decree of 7 May 2008 establishing certain modalities of implementation of the law of 15 December 1980 on the entry, residence, settlement and removal of foreigners.

43. Art. 40bis, §2, 1°, Belgian Immigration law.

44. Art. 40bis, § 2, 2°, Belgian Immigration Law.

45. See for further discussion: van den Bogaard et al. (2021), 20–24.

46. Five out of 32 municipalities when it concerns EU partners; four out of 32 municipalities when it concerns non-EU partners.

47. One out of 32 municipalities when it concerns EU partners; two out of 32 municipalities when it concerns non-EU partners.

48. Art. 40bis §4, second sentence, Belgian Immigration Law, which refers back to the conditions of entry contained in Art. 41 §2.

49. Six municipalities require a C visa (short-stay), whereas five require a D visa (long stay).

50. Case C-459/99 MRAX EU:C:2002:461 and Case C-157/03 Commission v Spain EU:C:2005:225. See for further discussion: van den Bogaard et al. (2021), 38–39.

51. See for further discussion: van den Bogaard et al. (2021), 95–100.

52. Interview with ABRA, 27 May 2020.

53. 4 out of 32 municipalities did not know whether their municipality accepts applications from this category of EU family members, 3 municipalities do not accept their applications for registration.

54. 3 out of 32 municipalities did not know whether their municipality accepts applications from this category of EU family members, 1 municipality does not accept their applications for registration.

55. 2 out of 32 municipalities did not know whether their municipality accepts applications from this category of non-EU family members, 5 municipalities do not accept their applications for registration.

56. Art. 34, Directive 2004/38; art. 6 Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers.

57. See, at the federal level, the Law of 11 April 1994 on Administrative Transparency, the Public-service User Charter of 4 December 1992 and the Charter for User-friendly Governance of 23 June 2006; see also, at the municipal level, the Law of 12 November 1997 on Administrative Transparency at Provincial and Municipal Levels.

58. The Charter for User-friendly Governance of 23 June 2006.

59. After the website analysis was conducted, the website of the Belgian Immigration Office was revised. Hence, the results of the website analysis as presented here concern a previous version of the Office’s website.

60. See for further discussion: van den Bogaard et al. (2021), 80–82.

61. Authors’ translation, interview with municipality K, 27 January 2020.

62. Authors’ translation, interview with municipality I, 5 December 2019.

63. Interview with municipality C, 22 October 2020.

64. Art. 4, Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers [2014], OJ L 128/8.

Additional information

Notes on contributors

Roos-Marie van den Bogaard

Roos-Marie van den Bogaard is PhD researcher at the Migration Law Research Group at Ghent University.

Ana Correia Horta

Ana Correie Horta is Executive Officer at the Court of Arbitration for Art and Gallery Assistant at MeetFrida Art Foundation.

Wout Van Doren

Wout Van Doren is Associate at law firm Fragomen.

Ellen Desmet

Ellen Desmet is an Associate Professor of Migration Law at Ghent University.

Anthony Valcke

Anthony Valcke is Visiting Lecturer in EU Migration Law at the Brussels School of International Studies, University of Kent.