OP-ED: Belgian Migration Minister ignores Constitutional Court ruling…and is met with almost no political resistance

By Helene Asselman

One may wonder why it still comes as a surprise that measures aimed at deterring people on the move not only cross every boundary of decency but increasingly also breach legal limits. However, many a lawyer both in and outside the migration sector nearly choked on their coffee when the Belgian Minister for Asylum and Migration, Aneleen Van Bossuyt, announced last week that – contrary to a ruling of the Constitutional Court – she would continue to refuse reception to applicants for international protection who already have international protection in another EU member state (MS) (so-called “M-status holders”). This marks a worrying new step in the erosion of the rule of law in Belgium.

Background: crackdown on “M-status holders” 

In an op-ed published in the ECRE Weekly Bulletin in September 2025, my colleague Thomas Willekens reported on the Belgian reception ban for M-status holders that came into force in August 2025. Among other restrictions, the Belgian legislature introduced two new measures regarding the asylum procedure and reception conditions for this specific group: a new provision in the Belgian Aliens Act that designates an application for international protection introduced by an M-status holder as a “subsequent application”, and a new provision in the Belgian Reception Act that allows the refusal of reception conditions to M-status holders. In practice, these new measures were applied in a particularly strict way: not only single men – which is no longer surprising given the ongoing Belgian “reception crisis” that started in 2021 – but also families with small children, pregnant women and people with serious medical and psychological issues, have been left on the streets of Brussels despite having applied for international protection. The Belgian non-reception policy reached a new low.

Constitutional Court suspends legal basis for refusal of reception to M-status holders

A number of NGOs filed an appeal before the Constitutional Court seeking the annulment of these legislative changes. They were joined by several lawyers who  brought an urgent suspension appeal on behalf of individual victims of this new policy. This enabled the case to be decided on a preliminary basis within a few months rather than the average delay of more than a year in general annulment procedures. And it was successful: on 26 February, the Constitutional Court suspended both (as well as other) legislative changes. Central to the Court’s decision was the question of whether applications for international protection by M-status holders could be considered as “subsequent applications” under EU law (see Thomas’s op-ed for more details). Whereas the Court of Justice of the EU (CJEU) in its Khan Yunis and Baabda ruling (C-123/23 and C-202/23, 19 December 2024) indicated that an EU MS may treat as a “subsequent application” an application lodged by someone who has previously received a final negative decision in another EU MS, the Constitutional Court noted that the CJEU not yet had the opportunity to rule on whether the same applies to applicants who have received a prior positive decision in another EU MS. Pending the CJEU’s answer to this preliminary question, the Constitutional Court decided to suspend the application of the legislative change in view of the risk of serious and irreparable harm to applicants.

Concealed violation of the rule of law

The relief felt by many working in the asylum and reception sector was, however, short-lived. Only a few days after the Constitutional Court ruling, Van Bossuyt announced that she “wouldn’t stand by and watch our asylum and reception system being abused” and that she would continue to refuse reception to M-status holders. The Minister must have sensed that this decision crossed a new red line, given her attempt to dress it up in a pseudo-legal justification. Indeed, the decision was said to rely on a so-called additional legal basis in Belgian law – it being precisely the one that the Constitutional Court had referred to the CJEU for clarification. Fortunately, asylum law specialists, constitutional experts, human rights institutes and even the High Council of Justice have all recognised the démarche for what it is: a blatant breach of the principle of the separation of powers, concealed behind a smokescreen. After five years of non-reception policy, over ten thousand convictions by Belgian courts at multiple levels and a judgment of the European Court of Human Rights condemning the Belgian State for its systemic disregard of domestic court rulings (see Camara v. Belgium), even the most seasoned Belgian asylum law practitioners no longer blink when confronted with yet another instance of disregard for the rule of law. Yet, as highlighted by a collective of constitutional scholars, this latest development marks a new level of gravity and should worry any citizen who values our constitutional democracy. While it is reassuring that this dangerous policy has been met with criticism by the broad legal field, it is troubling and frustrating just how little political reaction it has provoked: only one governing party publicly criticised the Minister’s action. This is all the more ironic given the explicit statement in the government agreement that “restoring trust in the legal system requires governments to respect the rule of law”.

On an important final note: amid all of the fundamental discussions about this worrying evolution, let us not forget the detrimental consequences of this decision for the people who are directly affected and who continue to endure inhumanly precarious living conditions on the streets of Belgium.

Helene Asselman is Team Lead – Socio-legal Support at ECRE member organisation Flemish Refugee Action.