Belgian Council of State annuls administrative fee residence permit applications

In two judgments of 11 September 2019, the Council of State (Raad van State, RvS) annulled the administrative fee that had to be paid for a large number of residence applications (RvS no. 245.403 and 245.404)

The RvS annulled two Royal Decrees:

• the Royal Decree of 16 February 2015 that for the first time introduced a fee for a basic amount of EUR 215, 160 and 60 (depending on the type of residence application). This decree acknowledged among other things the competence of the Immigration Office, municipalities and consular posts to declare residence applications inadmissible in the event of non-payment.
• the Royal Decree of 14 February 2017, which increased the basic amounts from EUR 215 and 160 to EUR 350 and 200.

There are a few other decrees that partially regulate the fee and that have not been annulled. But the reason why the annulled decrees are illegal also applies to the non-annulled decrees. In addition, the competence of the Immigration Office, municipalities and consular posts to declare residence applications inadmissible due to the non-payment of a fee has also been annulled. This means that there do not exist any legal implementing rules to request administrative fees for submitting a residence application.

The RvS annulled these two decrees for the following reasons:

• The Belgian state has not proved that the amount of the fee is in a reasonable proportion to the cost of the service provided. For the calculation of the average cost of a residence application, the government had based itself on a study which, according to the RvS, had not been carried out in a serious and careful manner.
• Since the basic amounts have not been determined in a serious and proportional manner, this is all the more true for the increased amounts according to the RvS. The increased amounts are based on a new study, which largely refers to the first (unreliable) study. The Belgian state has also not shown that the increased amount for family reunification procedures will not undermine family unity and the higher interest of the child.

Consequence: non-annulled decrees no longer apply on the basis of Article 159 of the Constitution

The annulled decrees have been fully or partially replaced or supplemented by other decrees after submitting the cancellation appeals:

• The annulled Royal Decree of 16 February 2015 was partially replaced by the Royal Decree of 8 June 2016 (against which no request for annulment was filed). This Royal Decree reinstates the basic amounts of the annulled Royal Decree and only adds an exemption from payment of fees for students and researchers with a grant. However, the delegation of competence to declare applications inadmissible due to non-payment of the fee was not taken over in the Royal Decree of 8 June 2016 and therefore no longer applies.
• The annulled Royal Decree of 14 February 2017 was replaced by the Royal Decree of 12 November 2018 (against which no request for annulment was filed). This Royal Decree amends the existing legislation in function of the single permit. The Royal Decree of 6 June 2019 extends this change to the European blue card.
• The Royal Decree of 22 July 2018 links the amount of the fee to the consumer price index. No request for annulment against this decree was filed.

Although the above mentioned decrees were not annulled by the RvS, they can also no longer be considered as applicable for the following reasons:

• Article 159 of the Belgian Constitution states that courts and tribunals may only apply decisions that are legal (= objection of illegality). As the RvS has clearly established in its two annulment judgments that the basic and increased amounts have not been correctly determined and exactly the same amounts are taken up in the non-annulled decrees, without any additional or alternative justification by the Belgian state, these decrees are also illegal and must be considered as not applicable.
• if an administrative authority continues to apply an unlawful decision, the interested party can raise the illegality of this decision before court.
• the possibility of raising the illegality of the Royal Decree of 8 June 2016 before court on the basis of Article 159, notwithstanding the fact that no request for annulment of the Royal Decree was lodged, is raised by the RvS itself in its judgment no. 242,596 of October 8, 2018.

Consequences for future and already paid fees?

The annulment of the two decrees has consequences for both the past and the future:

• The annulment is retroactive, meaning that the decrees are considered to have never existed. That means that:
  • all fees that were (incorrectly) paid from 2 March 2015 can be reclaimed from the Immigration Office.
  • in the event of a refusal of reimbursement, this can be enforced through an appeal to the civil court.
  • there is no longer any fee to be paid when submitting a new residence application.
• The Immigration Office, the municipalities and the consular posts no longer have the competence to declare residence applications inadmissible due to non-payment of the fee.

Position Immigration Office

On its general webpage, the Immigration Office implicitly communicates its position on the consequences of the RvS annulment judgments. According to the Immigration Office, the consequences are limited in time and a reimbursement can only be requested in the following two cases:

• if you paid a fee for an application submitted between March 2, 2015 and June 26, 2016.
• if you paid an increased contribution for an application submitted between 1 March 2017 and 2 January 2019 (repayment of the difference between the increased amounts and the basic amounts, for example. 350 euros – 215 euros = 135 euros).

The Immigration Office therefore seems to assume that for a residence permit application between 27 June 2016 and 2 January 2019 a fee could be requested for the amounts set in the Royal Decree of 8 June 2016 (which came into effect on 27 June 2016).

Whoever wants to dispute this, can fill in a general form for reimbursement of an incorrectly paid fee “for other reason” (to be found on the website of the Immigration Office): since the RvS judgment no. 245,404 has determined that these amounts are not correctly determined and substantiated, and that this illegality has not been remedied by the Royal Decree of 8 June 2016, that Royal Decree must be disregarded. This can also be invoked before court on the basis of Article 159 of the Constitution.

The Immigration Office also seems to assume that for all applications from 3 January 2019 a fee may be requested again for the increased amounts laid down in the Royal Decree of 12 November 2018 (which came into effect on 3 January 2019).

Those who wish to dispute this, can fill in a general form for reimbursement of an incorrectly paid fee “for other reason”: since the RvS judgments no. 245,403 and 245,404 declare that the basic and increased amounts were not correctly determined and substantiated and that this illegality has not been remedied by the Royal Decree of 12 November 2018, that Royal Decree must be disregarded. This can also be invoked before court on the basis of Article 159 of the Constitution.

The Immigration Office, the municipalities and the consular posts will each have to decide whether they will still make inadmissibility decisions that are open to appeal for illegality.

However, we still recommend to always pay these retribution fees when filing the single permit application, and only ask for a refund once the approval has been issued to avoid the risk of an application being determined to be inadmissible.

If you have any questions regarding payment and/or refund requests, do not hesitate to contact us at info@expatmanagementgroup.com.