Court/Judicial body: State Council, Administrative Section
Date: 20 March 1997 CRC
Provisions: Article 12: Right to be heard
Other international provisions:European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 8: Right to respect for private and family life
Domestic provisions: Law of 15 December 1980 on foreigners’ access to the national territory
Background: The claimant in this case sought the suspension of four separate orders to leave the country taken against his four underage children. In Belgium’s immigration law, adults receive orders to leave the territory (“ordre de quitter le territoire”); whereas in relation to minors, their parent or guardian is issued an order to accompany the child to their place of origin (“ordre de reconduire à l’endroit d’où il vient”). However, only two of the four children received the type of order directed at minors and the other two were issued deportation orders of the type designed for adults. The claimant argued that the orders constituted a violation of the children’s right to a family life under the European Convention on Human Rights (ECHR), to family reunification under Belgian law, as well as their right to be heard under the Convention on the Rights of the Child (CRC).
Issue and resolution: Family separation. Whether the enforcement of the administrative orders was against international human rights law. The Court ruled that there were no violations of international human rights instruments, but suspended the execution of the two orders to leave the territory on a procedural issue.
Court reasoning: The Court rejected the argument that the children’s right to a family life was violated, stating that Belgium’s immigration law was not in contradiction with the ECHR and that it had been properly applied in this case. It further rejected the argument that the orders were contrary to the legal provisions on family reunification on the grounds that the father himself was residing in Belgium illegally. As to the claimant’s reliance on Article 12 of the CRC in his argument that his children were not heard by the immigration authorities, the Court ruled that the CRC did not have a direct effect in the Belgian legal system. Finally, the Court accepted the two children were incorrectly issued the adult-type deportation order and, because the execution of these orders would put the children at “grave risk”, it decided to suspend the two orders to leave the country.
Excerpt citing CRC and other relevant human rights In French language: “Qu’enfin la Convention relative aux droits de l’enfant ne produit pas des effets directs dans l’ordre interne belge”.
As translated by CRIN: “Lastly, the CRC does not have a direct effect in the Belgian domestic law”.
CRIN comments: CRIN believes that this decision is inconsistent with the CRC. The Court’s decision fails to fulfil the right of the child to live with his/her parent and to family reunification under Articles 9 and 10. In addition, holding that the CRC did not have an effect in the Belgian legal system constitutes a breach of the State’s obligation under Article 4 to implement the rights contained in the CRC, obligation which includes the direct enforceability of the provisions of the CRC according to General Comment No. 5 of the Committee on the Rights of the Child.
Citation: Conseil d’Etat, section d’administration, arrêt n° 65.348, 20 mars 1997.
Link to full judgement: http://www.raadvst-consetat.be/Arrets/65000/300/65348.pdf#xml=http://www.raadvst-consetat.be/apps/dtsearch/getpdf.asp?DocId=32526&Index=c%3a\software\dtsearch\index\arrets_fr\&HitCount=1&hits=b55+&37434420152912