Proposition 53K1855

Proposition de loi modifiant la loi du 15 décembre 1980 sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers en ce qui concerne le regroupement familial sur la base de la cohabitation légale.

General information ¶

Authors

VB Gerolf Annemans, Filip De Man, Annick Ponthier, Tanguy Veys

Submission date

Oct. 28, 2011

Official page

Visit

Status

Rejected

Requirement

Simple

Subjects

foreign national family migration civil union admission of aliens residence permit

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld MR

Voted to reject

N-VA LDD VB

Party dissidents ¶

• Peter Luykx (CD&V) voted to reject.

Contact form ¶

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Discussion ¶

Dec. 5, 2013 | Plenary session (Chamber of representatives)

Full source

I refer to the written report.

Thank you for the 15 minutes that have been given to me; it must succeed.

Colleagues, the reason for this bill amending the law on family reunification on the basis of legal cohabitation originates in fact in the so-called mercuriale which Yves Liégeois, Attorney General at the Labour Court in Antwerp, pronounced on 1 September. He did so together with Attorney General Piet Van den Bon. The title was meaningful: End of democracy?

The prosecutor concluded his speech as follows – I quote: “With this mercurial complaint I address these wretched states of serious democratic deficit and ask every political leader and the responsible political parties how long they will tolerate that we continue to strive for an end-of-democracy event.” For himself, or for the magistrates, he said, “Change? Yes, we can.”

In response, there was some surprise from a political point of view. Soon, they pulled the sticks up and pointed with the finger to justice. However, a hearing with, inter alia, the Attorney General concerned was held on 21 September 2012. At that time it was already clear that there was ⁇ a lot of support in the opposition for the prosecutor’s statements.

I refer, inter alia, to the position of colleague Smeyers who stated that he was not surprised by the pain points cited by the magistrates. Also Ms. Sminate noted to her satisfaction that the Prosecutor’s Office dared to give attention to a number of pressing social problems.

In fact, the Committee on Justice of 28 September 2011 was also involved. Also there was the N-VA again, in response to, for example, colleague Bracke, who recorded it for the magistrates: “It shocks me that members of the Justice Committee would rather shoot at the messengers than want to hear the message itself.”

Collega Bracke stated, among other things: “Then there are magistrates who do not sit in a cocon and take on their social responsibility, and then they are just taken here for a while. The way we organize our hearings must clearly be improved.” It was about the fact that former Minister of Justice Stefaan De Clerck left the meeting during the hearing.

There was also the following conclusion of colleague Bracke – I quote: “The people involved spoke from a real concern, using certain exaggeration to make their message clear, a technique that we also use in politics. Let us not overlook this but work on solutions.”

I will name you one of the solutions that Vlaams Belang presented in the matter, taking into account what during that hearing – it brought clarification regarding the positions of Prosecutor Liégeois – was put forward by Chantal Merlin, First Deputy Prosecutor of the King at the Court of First Instance in Antwerp. In her extensive discourse she spoke, among other things, of the important phenomenon of the false cohabitation. She argued that current legislation is insufficient and that this phenomenon must ⁇ be addressed as a priority.

Vlaams Belang has, in any case, not remained at the costumes and has addressed the problem that was addressed by Mrs. Merlin. On 28 October 2011, we submitted a bill to do something about it.

In the committee I defended this draft law of Vlaams Belang. With the exception of an intervention by the N-VA, no other party has commented on it. However, the vote was clear: only Vlaams Belang voted in favour. The N-VA also voted against.

That is the reason for my present speech. The position of the N-VA worried me. One of the arguments of the N-VA against our bill, which we might have heard from the reporter, is that the false cohabitation under the law of 2 June 2013, which entered into force on 3 October 2013, is now defined in the Civil Code and the Belgian immigration policy.

I refer to a booklet from the N-VA itself: Belgium, a country without borders. I will quote for a moment in Latin, which is the custom in N-VA circles: verba volant, scripta manent. Well, when reading this booklet, this pamphlet as it were, it shows that the N-VA in connection with the new law on family reunification – a law to which N-VA has collaborated – comes to the conclusion that she only regretted one thing when she looks back on the negotiations that preceded the new law on family reunification: “that we have joined the family reunification on the basis of registered partnerships”. This is, of course, a very public confession of guilt of the N-VA and yet somewhat in contradiction with the position that the N-VA then took in the committee for internal affairs.

I suspect that the N-VA is still trying to pretend that what was described in the booklet itself does not exist. But of course, scripta manent. Now, they are not pushing in their booklet the track of a criminalization of the false cohabitation by analogy of the false marriage forward, but were still apparently at the end of 2012 as well as Vlaams Belang in favour of not binding any residence legal consequences to the filing of a declaration of legal cohabitation.

The N-VA has indeed made a curve. It is, of course, not the first curve, but it is still relevant and striking, ⁇ because this is in contradiction with what they have defended as a position in the committee and with what they have written in their pamphlet.

Of course, the criminalization of false cohabitation is a step forward – in which I would like to follow the N-VA – compared to the previous situation in which family reunification on the basis of legal cohabitation was permitted. However, a false cohabitation, unlike a false marriage, could not be criminally punished.

The question is whether this will be enough? That is why we have submitted this bill. According to Vlaams Belang, a false marriage is still easier to prove than a false cohabitation. This is also stated by Mrs. Merlin. Apparently, N-VA escaped the attention of the N-VA during the hearings where they still praised the members of the Judiciary concerned. In fact, contrary to the statements of legal cohabitation, marriage is per definition considered to be aimed at the creation of what is called a sustainable life community. This is not always the case with a declaration of legal cohabitation. This also means that legal cohabitation can be terminated more easily than marriage.

In fact, the legal cohabitation can be terminated not only by mutual agreement by the cohabitants, but also unilaterally by means of a written declaration delivered to the official of the civil status, which means that declaration in the event of judicial value explosion to the other party. Subsequently, the civil status official simply makes a notification of the termination of the legal cohabitation in the population register. This is very simple and therefore an excellent technique to do family reunification.

Whether the legal cohabitation is terminated by mutual agreement or unilaterally, there is no separate procedure. More and more often, no further formalities need to be completed. Legal cohabitation is a lighter, therefore less sustainable form of society than marriage. This is also evidenced by the fact that a declaration of legal cohabitation does not constitute a marital barrier, contrary to what Ms. Dumery said in the committee. Article 1476 of the Civil Code therefore expressly provides that the legal cohabitation ceases when one of the parties enters into marriage, and that spouse may be a third party.

A fictitious cohabitation will be more difficult to prove than a fictitious marriage because evidence of the former fictitious situation will not be able to be derived from the circumstances indicating the absence of an intention to establish a sustainable life community. This is also pointed out by Mrs. Merlin. Compare the different provisions of the Civil Code.

For example, Article 146bis states: “There is no marriage when, despite the formally given consent to marriage, from a set of circumstances it appears that the intention of at least one of the spouses is obviously not aimed at the establishment of a lasting life community, but only at obtaining a residence right benefit linked to the state of the spouses.” Article 146bis states: “There is no legal cohabitation if, despite the expressed will of both parties to live together legally, from a set of circumstances it appears that the intention of at least one of both parties is obviously aimed only at obtaining a residence right benefit linked to the state of legal cohabitation.”

The question arises as to how one will be able to prove that the intention of at least one of both parties is only aimed at obtaining a residence right advantage.

Another argument of the N-VA for not supporting our proposal is that our bill provides for a different treatment, depending on whether it is a marriage or a declaration of legal cohabitation.

This is indeed the case. However, there is no discrimination because the declaration of legal cohabitation is fundamentally different from that of marriage. Therefore, there is no unequal treatment of equal cases.

The declaration of legal cohabitation is therefore not by definition aimed at the establishment of a sustainable life community, so it can be easier to terminate and does not constitute a marital barrier. Marriage is therefore more important, because it destroys the legal cohabitation. In hereditary terms, there is nothing but an equalization of marriage.

Since the introduction of same-sex marriage, the possible argument that allowing family reunification on the basis of marriage alone constitutes indirect discrimination on the basis of sexual orientation has also been removed.

This is a substantial replica to the arguments that we unfortunately did not hear in the report, but which were used in the committee to justify a vote against this bill.

As I pointed out in the committee in the explanatory note to the bill, the Flemish Interest remains of the opinion that the attention can best be concentrated on the fight against the hypocritical marriages by no longer linking residence legal consequences to the declaration of legal cohabitation.

As a rapporteur, I would like to make a correction to what we have just heard. The N-VA group has indeed said that what the Flemish Interest proposes is outdated, because we have already made adjustments in the committee to address the false partnership.

Furthermore, it is not a discrimination, but the fact that we believe that there is no difference between someone who is married and someone who lives together legally. It is not about discrimination, but about a political view of us. That is why we voted against.