A child born in Belgium to Palestinian parents recognised as refugees was granted Belgian nationality pursuant to Article 10(1) of the Belgian Nationality Code (WBN), which stipulates that a child born in Belgium who has no other nationality is Belgian. By decision of 5 March 2024, the registrar of Antwerp revoked the child’s Belgian nationality, considering that the child could acquire the Palestinian nationality through the parents or via the Palestinian mission to the EU, Belgium and Luxembourg. The registrar of Antwerp cancelled the Kids ID and Belgian passport of the child. The parents contested the revocation before the Court of First Instance of Antwerp, Family Court Section, claiming that their child should be recognised as Belgian national.

The Court of First Instance of Antwerp held that the child did not possess any other nationality, in light of both the absence of a formal Palestinian nationality framework and the impossibility for refugees to register the child remotely.

The court first stated that a child born in Belgium retains Belgian nationality as long as it is not proven that he or she has a foreign nationality. The court noted that the Belgian nationality was granted to the child almost automatically and entered in the national register. The court emphasised that the possibility of re-examination is legally enshrined in Article 10(3) of the WBN and is therefore not necessarily an infringement of the rights of the child and/or legal certainty.

The court considered that nationality is the legal relationship that connects an individual to a State. It examined the criteria of the Montevideo Conference of 26 December 1933, finding that a State is considered as such if it has a population, a defined territory, a government, and enters into relations with other States. The court emphasised that Palestine has a population, it has a territory in Gaza, the West Bank and East Jerusalem, and the Palestinian Authority as its state authority, with diplomatic representation in third countries and at the UN. It also considered that the recognition of the State of Palestine by Belgium was not, in essence, decisive for defining Palestine as a State. The court emphasised that the serious escalation of the conflict in part of the territory (Gaza) since 7 October 2023 did not alter the finding that Palestine should continue to be considered a State.

The court then considered whether a child born on Belgian territory from parents of Palestinian origin has Palestinian nationality automatically or can acquire it through administrative acts at the diplomatic or consular authorities. The court examined a set of texts, which are not actual nationality legislation, obtained from the Palestinian mission to the EU, Belgium and Luxembourg. The certificates issued by the Palestinian mission attested that a child born to a Palestinian father and a Palestinian mother is Palestinian, but a child of Palestinian parents born in Belgium does not automatically have Palestinian nationality and can obtain it by going to the Occupied Palestinian Territories for registration in the Palestinian Registry of Civil Status.

The court found that there was no official written Palestinian nationality legislation; Palestinian identity cards issued by Israel to Palestinian citizens were only considered as temporary residence cards and not as identity cards; Palestinian passport and identity were not considered a nationality but were issued as travel documents in accordance with the Oslo Accords; registration in the population registers depended on Israel and therefore the mission could not register or add newborns; the Israeli occupier demanded that children born outside the Occupied Territories go to the territory for registration; Documents issued by the Palestinian Authority did not grant nationality but merely show origin. The court then considered that there was no text on the basis of which it can be established that a child born in Belgium to Palestinian parents automatically held Palestinian nationality. The court referred to the most recent information from the Palestinian mission and the Cedoca COI Focus at the CGRS, finding that it would be necessary to go on the spot to obtain the Palestinian nationality, which would not only be an inhumane demand with regard to Palestinian parents with a young child, but is also not possible given their status as refugees. The court held that the Palestinian mission in Brussels (or in a neighbouring country) was unable to secure the child’s remote registration in the Israeli-controlled population registry as a Palestinian national. The court also stated that the Immigration Office (DVZ) could not act as an intermediary that could complete the formalities in this regard. The court found that the matter of Palestinian nationality was both undocumented and particularly complex due to the particular nature of the conflict on the one hand and Israel's control of registration on the other. The court thus considered that it could not be established beyond any doubt that the child had a foreign nationality.

The court noted the Public Prosecution Service’s argument that, in no European country, mere birth on the territory as a stateless person automatically results in the acquisition of nationality, and that such an approach must be applied with caution in light of a potential “suction effect.” However, the court emphasised that the decision to enshrine a provision such as Article 10 of the WBN in national law reflects a  policy choice by the Belgian legislature. It further observed that any potential “suction effect” is linked to that legislative choice and highlighted that the judiciary must apply the legal provision as it stands.

The court held that the best interests of the child and the disproportionate consequences associated with the loss of Union citizenship should be taken into account, including in cases where nationality has been acquired fraudulently. The court observed that the parents may have chosen to come to Belgium and arrange for the birth to take place there in light of Article 10 of the WBN. However, it emphasised that this did not constitute a temporary “Belgium route,” as the family had continued to pursue its genuine centre of interests in Belgium and had since established and maintained residence there as recognised refugees. The court found no evidence of fraud, but rather the legitimate use of the legal avenues provided by the WBN, in contrast to the legal frameworks of neighbouring countries.

Considering the above, the Court of First Instance of Antwerp found the claim to be well founded and annulled the decision to withdraw the child’s Belgian nationality.