Belgium’s Constitutional Court has dealt a significant blow to the federal government’s plans to implement what Prime Minister Bart De Wever had described as the “strictest migration policy in the country’s history.”
In two rulings, the court suspended several key provisions concerning family reunification and the reception of asylum seekers on the grounds that they could contravene European Union law and fundamental rights.
The decision highlights a growing tension across Europe: whether judicial oversight and EU law are limiting the ability of elected governments to tighten migration policy in response to sustained high asylum arrivals and mounting strain on reception systems.
The first ruling focuses on the new family reunification rules adopted in August last year. Among other changes, the government introduced a two-year waiting period for beneficiaries of subsidiary protection—individuals who do not obtain full refugee status but cannot be returned to their country due to a risk of “serious harm”—before being allowed to bring their family members to Belgium.
NGOs argued that this reform made family reunification “virtually impossible” for many families and appealed to the Constitutional Court. Two affected families requested the suspension and annulment of the law.
The Court decided to refer five preliminary questions to the Court of Justice of the European Union (CJEU) regarding the interpretation of EU law and, while awaiting a response, suspended the application of these provisions.
The second ruling concerns changes to how asylum seekers are accommodated. Under the reform, individuals who had already been granted international protection in another EU member state would no longer automatically qualify for housing provided by the federal reception agency, Fedasil. The government had also removed the option of substituting state-provided accommodation with financial assistance in certain cases.
The Court considered that these provisions could cause “serious harm” and also suspended them provisionally.
Political context
The executive, backed by a center-right coalition, said the measures were necessary to restore the credibility of the asylum system and ease pressure on a reception system that has been saturated for years. Fedasil has faced thousands of court rulings for failing to provide legally required accommodation amid persistent shortages and, in recent cases, asylum seekers have been left sleeping on the streets.
Migration Minister Anneleen Van Bossuyt emphasized that the suspension is partial and temporary, and that the accommodation problem is currently “virtually non-existent” due to the decline in arrivals.
She also expressed confidence that the CJEU will confirm the compatibility of Belgian legislation with European law, particularly in light of the European Migration and Asylum Pact, adopted in May 2024, and whose full entry into force is scheduled for this year.
Who decides migration policy?
Citizens and policymakers argue that the European legal framework, shaped over years under an expansive interpretation of individual rights in migration matters, de facto limits the ability of states to adjust their policies to new demographic, social, and security realities.
The systematic use of the courts to block or delay reforms approved by democratic majorities fuels the perception that the judiciary and certain NGOs act as an entrenched obstacle to any attempt to toughen migration policy.
This pattern is not unique to Belgium; similar reforms have faced legal challenges before national and European courts across several member states.
Supporters of tougher immigration controls argue that if EU law prevents governments from restoring order and security, then the rules themselves need to be changed at the European level
