Two families of Yemeni nationals submitted requests before the Constitutional Court for the suspension and annulment of the new rules restricting access to family reunification for beneficiaries of subsidiary protection and their family members. The Constitutional Court decided to join the examination of both cases and to adopt a single judgment.
The law of 18 July 2025, amending the Law of 15 December 1980 on access to territory, residence and removal of third country-nationals introduced stricter rules for family reunification of beneficiaries of subsidiary protection with their family members who are not present on the Belgian territory, with the following requirements to be met in order to be granted a residence permit for more than 3 months: a) payment of a fee; b) two years waiting period from the moment when the third-country national rejoining the sponsor is allowed or authorised to reside in Belgium; c) stricter conditions related to financial subsistence means, housing and health insurance; d) reinforced rules on the proof of alleged family ties. However, the requirements concerning the means of subsistence and the waiting period do not apply if the sponsor is rejoined by his or her minor child or disabled unmarried child over 18 years old, or by their spouse’s minor child, or unmarried disabled child over 18 years old.
The first family alleged that the husband left Yemen due to the war, fled to Belgium where he was granted subsidiary protection on 13 October 2025. As a result, he was separated from his spouse and minor child (second and third applicants) for already one year and a half, a separation at risk of being extended for another two years due to the recently adopted restrictive measures, and even more when considering that the proceedings for a visa request can last 9 months. They argued that the situation in Yemen is deteriorating and the only way to continue their family life is through family reunification.
As for the second family, they fled Yemen due to the war and the first, third, fourth and fifth applicants were granted subsidiary protection by decision of 30 September 2025. The second applicant, the husband, was residing in Egypt, where his diplomatic visa had expired and he is no longer was a legal resent there. He had already been separated from his children and spouse for a year and a half, and in view of the contested provisions, this situation could last for another two years or even more when considering that the proceedings for a visa request can last 9 months. The applicants claimed that they could not enjoy their family life in Yemen, which was at war, and could not reunite in Egypt because they did not have a legal residence there. Their only option to continue family life would be if the second applicant is allowed to reside in Belgium on the basis of family reunification. The applicants also emphasised that the principle of non-refoulement is not respected in Egypt. Both families underlined that each additional day of separation from their children/spouses has serious consequences for the well-being of all members of the family, especially for the minors. Also, the first family underlined that the situation in Yemen amounted to a humanitarian crisis, this being the reason why the husband had been granted subsidiary protection, and that the longer the spouse and child were compelled to stay there, the worse the situation became for them in a context of insecurity, constant stress and risk of being victims of the war.
In contrast, in its observations, the Council of Ministers argued that the applicants’ requests were unfounded on grounds that the two international protection statuses were not comparable and the difference in treatment is objectively justified. It held that the applicants would not be deprived of their rights but subject to stricter requirements and noted that no application for family reunification had been lodged and that they had already been separated for a long period of time. The Council of Ministers claimed that the applicants failed to demonstrate that the contested provisions would subject them to a risk of serious and irreparable harm if not suspended. On the best interests of the child, the Council of Ministers emphasised that the legislator stipulated an exception to the waiting period and the financial conditions.
The Constitutional Court decided to stay the proceedings and to submit five questions before the Court of Justice of the European Union (CJEU) for a preliminary ruling on the compatibility of these provisions with the Family Reunification Directive, the recast Qualification Directive (QD), the Qualification Regulation 2024/1347 and the Charter of the EU for Fundamental Rights (EU Charter). It reiterated that Article 267 of the Treaty on the Functioning of the EU (TFEU) mandates the CJEU to decide in a preliminary ruling on the interpretation of treaties and EU acts as well as on their validity. As derived from the same article, national jurisdictions have an obligation to refer to the CJEU ex officio when their decisions – such as those of the Constitutional Court - are not subject to any judicial review under domestic law. Therefore, in case of doubt regarding the interpretation or validity of EU law that is relevant to the outcome of the pending case, the court concerned must submit questions before the CJEU for a preliminary ruling.
First and second questions
The applicants submitted that beneficiaries of subsidiary protection and their family members who are not present on the Belgian territory, received less favourable treatment than beneficiaries of refugee status and their family members who are not present in Belgium in the family reunification framework. The Constitutional Court held that the more favourable conditions for refugees derived from the Family Reunification Directive which excludes from its scope beneficiaries of subsidiary protection.
The court distinguished between the concept of different treatment and comparability. It held that, while a different protection status, entailing access to different rights after recognition and different grounds for withdrawal, may be a factor in the assessment of the reasonableness and proportionality of a difference in treatment, it cannot suffice to conclude that situations are not comparable. Such a conclusion would render the examination of the principle of equality and non-discrimination futile. The court held that the situation of beneficiaries of refugee status and beneficiaries of subsidiary protection and their family members, respectively, are comparable when it comes to the right to family reunification.
It noted that the Family Reunification Directive provides for more favourable rules for family reunification of refugees, for whom the directive created a more flexible regime on evidentiary requirements for family ties, and when refugees are not required to demonstrate sufficient subsistence means, housing and health insurance unless the request for family reunification is lodged more than 3 months after the granting of the status. Also, refugees are not subject to any residence requirement before being joined by their family members.
The court reiterated that Article 3(2)(c) of the Directive 2003/86/CE explicitly excludes beneficiaries of subsidiary protection from its scope, as confirmed by the CJEU in the judgment K and B v State Secretary for Security and Justice, Netherlands (Staatssecretaris van Veiligheid en Justitie) (Case C-380/17, 7 November 2018). It also referenced the EU Commission communication to the Council and the Parliament on the guidance for application of Directive 2003/86/EC on the right to family reunification. It noted that the contested measures concerning beneficiaries of subsidiary protection and their family members who are not present on the Belgian territory are purely a matter of domestic law, which the legislator justified by referring to the Article 3(2) of the Family Reunification Directive.
The referring court took the view that the subsidiary protection status can be renewed, similarly to the refugee status, and that both statuses can be used to obtain a longer residence permit after 5 years, which is in line with the CJEU conclusions in the case Kreis Warendorf and Ibrahim Alo v Region Hannover, (joined Cases C-443/14 and C-444/14, 1 March 2016). In that case, the CJEU established that any different measure concerning beneficiaries of subsidiary protection must be objectively justified, individualised and respect fundamental rights and found that requiring a residence permit for beneficiaries of subsidiary protection and not for refugees was discriminatory. Moreover, the referring court noted that in the same judgment, the CJEU had already underlined that ‘national rules could legitimately provide for a residence condition to be imposed on beneficiaries of subsidiary protection status, without such a condition being imposed on refugees, third-country nationals legally resident in the territory of the Member State concerned on grounds that are not humanitarian or political or based on international law and nationals of that Member State, if those groups are not in an objectively comparable situation as regards the objective pursued by those rules.’
The referring court cited the UNHCR Observations on the draft project to modify the law of 15 December 1980 on access to territory, residence and return of third country nationals with regard to the conditions for family reunification as submitted to the House of Representative on 5 June 2025. In its observations, the UNHCR expressed concerns that the proposed amendments would lead to an unjustified difference of treatment and called for equal access to rights irrespective of status. The UNHCR emphasised that imposing a waiting period for beneficiaries of subsidiary protection was discriminatory insofar as this measure did not take into account the situation of vulnerable family members who could be exposed to risks by remaining in their country of origin or of temporary residence. Citing the European Court of Human Rights’ (ECtHR) reasoning in M.A. v Denmark (No 6697/18, 9 July 2021), the UNHCR stressed the need to balance interests and to conduct an individual assessment in order to comply with the requirements of Article 8 of the ECHR. It contended that imposing a waiting period for family reunification can expose family members to significant risks, heightened by their vulnerable situation and can deter integration efforts from the beneficiary of international protection. The UNHCR also criticised the changes in the evidentiary requirements related to family ties and argued that beneficiaries of subsidiary protection must benefit from the same flexibility as refugees in this regard, otherwise applicants would face various obstacles.
Thus, the first question submitted by the court concerned the validity of the Family Reunification Directive in view of the difference in treatment, finding it necessary for the constitutionality review to determine whether Articles 3 (2) (c) and 9 – 12 of directive violate the principle of equality and non-discrimination, read or not jointly with the right to respect for family life and child’s rights. Assuming that the directive is deemed valid, with the second question, the court sought clarification on whether the EU Charter opposes to national measures providing for less favourable conditions for family reunification for beneficiaries of subsidiary protection than for refugees.
Third and fourth questions
The applicants alleged that family members of beneficiaries of subsidiary protection who are present on the Belgian territory benefit from more favourable conditions for family reunification than those who are not present in Belgium. The court noted that the recast QD introduced the status of subsidiary protection, and that this directive is also governed by the principle of family unity for both types of protection in a way that Member States must issue a renewable residence permit to beneficiaries of subsidiary protection and their family members.
Also, the concept of family members within the meaning of the recast QD comprises only members who are present on the territory of the Member State for the purpose of requesting international protection, provided that the family existed in the country of origin. Consequently, the guarantees deriving from this directive do not necessarily apply to family members who are not present in the Member State where the beneficiary of subsidiary protection is present. The same provisions are mirrored in the Qualification Regulation 2024/1347 which will apply as of 1st July 2026.
With the third question, the Constitutional Court asked the CJEU whether both the recast QD and the Qualification Regulation are invalid in so far as the concept of family members is limited to those present on the territory of the Member State for the purposes of requesting international protection. Assuming that the directive and the regulation are valid, the court further asked in a fourth question whether the EU Charter opposes to national measures as those contested by the applicants due to the fact that beneficiaries of subsidiary protection and their family members which are not present on the Belgian territory are subject to less favourable conditions for family reunification than those who are present in Belgium.
Citing the CJEU judgments in cases Rhimou Chakroun v Minister van Buitenlandse Zaken (C-578/08, 4 March 2010), E. v Staatssecretaris van Veiligheid en Justitie (NL) (C-635/17, 13 March 2019) and X,Y, A, B v Belgian State (C‑1/23 PPU, 18 April 2023) the referring court posed a fifth question to the CJEU, requesting clarification on whether national legislation providing for less favourable rules breaches the right to family life and best interests of the child as protected under the EU Charter.
The referring court held that the immediate application of the contested provisions may cause a risk of serious and irreparable harm to the first family, composed by a Yemeni national, subsidiary protection beneficiary in Belgium and his spouse and minor child, both still living in Yemen. The court assessed that, in view of the contested rules, the applicant’s family members were at risk of a prolonged separation which had already lasted for one year and a half. The court took the view that the minor child was only 12 months old and that if the separation was prolonged, with an impossibility for family reunification, it would seriously damage the future relationship between the child and his father. The court also considered the fact that his spouse and child remained in a country which is facing a serious humanitarian crisis. Consequently, the court suspended the provisions of the Law of 18 July 2025 as they introduce stricter conditions and evidentiary requirements for the reunification of family members of subsidiary protection beneficiaries who are not present in Belgium. The court ordered the suspension to last until the CJEU has pronounced a ruling on the referred questions.
The Constitutional Court submitted the following questions before the CJEU for a preliminary ruling:
- Do Articles 3(2)(c) and 9 to 12 of the Family Reunification Directive concerning the right to family reunification breach the principles of equality and non-discrimination guaranteed by Articles 20 and 21 of the EU Charter, read in conjunction or not with the right to respect for family life pursuant to Article 7 of the EU Charter as well as the child’s rights as provided under Article 24 of the EU Charter, on grounds that beneficiaries of subsidiary protection and their family members are excluded from the application of this directive and specifically from more favourable rules in matters of family reunification which are applicable to beneficiaries of refugee status and their family members?
- In case of a negative answer to the first question, the principle of equality and non-discrimination guaranteed by Articles 20 and 21 of the EU Charter read in conjunction or not with the right to respect for family life pursuant to Article 7 of the EU Charter as well as the child’s rights as provided under Article 24 of the EU Charter, must be interpreted as precluding national provisions such as Articles 1er/1, 10, § 1er, 1er, 5°, and § 2 (2 – 5), 10bis, § 2/1, 11 and 12bis of the Law of 15 December 1980 on access to territory, residence, and removal of third-country nationals, as modified by Articles 3, 5, 6, 8, and 9 of the Law of 18 July 2025 which afford beneficiaries of subsidiary protection less favourable rights for family reunification than to refugee status holders?
- Is Article 2(j) of the recast QD, read jointly with Articles 23 and 24 of this directive, and Article 3 point 9 of the Qualification Regulation, read in conjunction with Article 23 of the regulation, violating the principle of non-discrimination guaranteed under Articles 20 and 21 of the EU Charter, read in conjunction with the right to respect for family life under Article 7 of the EU Charter as well as the child’s rights provided under Article 24 of the EU Charter, concerning the concept of ‘family members’ as being limited to family members of beneficiaries of international protection which are present on the territory of that Member State for the purpose of requesting international protection, in a way that family members which are not present in the same Member State are excluded from the guarantees provided under Articles 23 and 24 of the directive and Article 23 of the Regulation?
- In case of a negative answer to the third question, the principle of equality and non-discrimination guaranteed under Articles 20 and 21 of the EU Charter, read in conjunction or not with the right to respect for family life under Article 7 of the EU Charter as well as child’s rights under Article 24 of the EU Charter, must be interpreted as meaning that they oppose to national measures as stipulated under Articles 1er/1, 10, § 1er, (1er, 5°), and § 2 (2-5, 10bis), § 2/1 (11 and 12bis) of the Law of 15 December 1980 as modified by the Law of 18 July 2025, which provide beneficiaries of subsidiary protection and their family members who are not present on the Belgian territory with less favourable conditions for family reunification than to beneficiaries whose family members are present in Belgium ?
- The right to respect for family life guaranteed under Article 7 of the EU Charter and the child’s rights under Article 24 of the EU Charter must be interpreted as meaning that they oppose to national measures provided under Articles 1er/1, 10bis, § 2/1, 11 and 12bis of the Law of 15 December 1980, as modified by Articles 3, 6, 8 and 9 of the Law of 18 July 2025, which concern the conditions for family reunification of beneficiaries of subsidiary protection and their family members which are not present on the Belgian territory? In addition, the referring court sought to verify the compatibility of national provisions with the EU law with regard to the possibility of an individual assessment and a balancing of interests, meaning that a request for a residence permit can be introduced on the grounds of Article 9 or Article 9bis of the Law of 15 December 1980, which grants the minister a discretionary power.