Belgium - Council for Alien Law Litigation, 25 January 2016, No. 160664

Facts:

The applicant was a third party national from Cameroon and entered Belgium on a student visa in August 2009 (visa B1/ B2).  In October 2010, he successfully applied for a visa valid until October 2011 on the basis of art. 58 of the law of 15 December 1980. After changing schools, the applicant was no longer eligible for a student visa as the new school did not meet the relevant requirements. He applied for a prolongation on the basis of art. 9 bis of the law of 15 December 1980. His application and his subsequent appeal were rejected. 

At some point in 2014 the applicant married a Belgian citizen. In February 2015, he applied for a residence title as a family member of a Belgian citizen.

His application was rejected because he failed to prove in the required time that his wife had “stable, regular and sufficient means of subsistence” to support him. This was because her last work contract ended in October 2014 and she was unemployed.

At the time of the application, the applicant was earning €1,400 per month. This was higher than the relevant threshold of €1,307.78 needed for a resident title application (see art. 14 § 1, n° 3 Law 26 May 2002 on social integration). The State, nevertheless, rejected the application.

The State argued that, according to art. 40 of the law of 15 December 1980, the applicant’s income could not be taken into account when assessing the relevant monetary threshold.  

The applicant argued that the reasons given for the decision were inadequate because the State had not taken into consideration the common assets at the disposal of the married couple, including the applicant’s assets.

Decision & reasoning:

The Court considered the interpretation of the word “dispose”/ “disposer” in article 40.2 of the law of 15 December 1980. It noted that the policy rationale of this law was to prevent a foreign family member from becoming a financial burden on the State.

Art. 40.2 transposes Directive 90/346/CEE (eventually derogated by Directive 2004/38/CE). The CJEU had previously clarified that no further requirements regarding the origin of the EU citizen’s financial resources should be added (C 408/03, Commission v. Belgium, 23 March 2006; C-218/14, Singh et. al., 16 July 2015).

According to the dictionary Larousse, “disposer” means to be able to make use of something.

The Court referred to arts. 221.1 and 2 of the Civil Code, which state that both spouses have to contribute to the household’s expenses in accordance with their abilities. If a spouse does not contribute sufficiently, the other spouse can apply to the family court to grant him/her exclusive access (within the limits specified by the Court) to the first spouse’s salary without having to prove any fault. 

Given that the policy rationale behind imposing a minimum salary requirement on a residence title application was to avoid financial burden on the State, the Court did not see any reason why – in the light of arts. 221.1 and 2 of the Civil Code – the Applicant’s salary should be excluded in the relevant calculations.

Outcome:

Appeal granted

Observations/comments:

The Court rejected the Conseil d’Etat (CE)’s interpretation on the following points:

·         The CE argued that in the judgement n° 230.955 from 23 April 2015, the Constitutional Court (CC) explicitly referred to the extension of a residence title (not an initial application) in deciding that the financial means of a Belgian citizen’s family members can be taken into account for the assessment of the means of subsistence. The CE argued that, because the CC in that case had only considered an extension, the CC had intended on limiting its decision and reasoning to cases involving an extension of a residence title. 

o   The CCE responded by noting that the application to the CC concerned a different legal issue than the one at hand. Hence, the judgement did not stand as authority for the interpretation of the words “dispose of” which was the relevant legal issue in the current case. 

·         The CE argued further that the legislature had already dealt with cases concerning family financial resources in assessing the relevant thresholds. It referred to art. 10 bis § 1 of the law of 15 December 1980.

The Court responded to this argument by noting its current judgment was consistent with those provisions because the legislation contemplated a distinction between, meaning that the Belgian spouse can dispose of (including the means of family members that it can dispose of), and that those means of his/her family members that it cannot dispose of.

This case summary was done by Linklaters LLP.