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On April 2nd, 2026, the Belgian Constitutional Court delivered an important judgment concerning the application of Article 40ter of the Belgian Aliens Act (Judgment No. 38/2026). In this ruling, the Court clarified the scope of the means of subsistence requirement applicable to Belgian sponsors in family reunification cases and held that a particular interpretation of Article 40ter—reflecting the prevailing administrative practice—is unconstitutional.
The ruling not only affects the two proceedings that gave rise to the preliminary questions but also has significant implications for numerous pending and future family reunification cases.
Background
The case concerned two applications for family reunification in which foreign partners sought residence rights on the basis of their relationship with a Belgian national residing in Belgium. The Belgian Immigration Office rejected the applications on the grounds that, in its view, the Belgian sponsor did not possess sufficient stable, regular and adequate means of subsistence.
The Council for Alien Law Litigation observed that, in practice, Article 40ter of the Aliens Act had often been interpreted as allowing only the Belgian sponsor's own income to be taken into account. The income of the foreign partner seeking to join the Belgian national was systematically disregarded.
As our firm had previously argued in a number of cases, the Council decided on this occasion to refer a preliminary question to the Constitutional Court.
The Unconstitutionality Identified by the Court
The Constitutional Court held that this interpretation of Article 40ter of the Aliens Act of 15 December 1980 “on access to the territory, residence, establishment and removal of foreign nationals” is contrary to Articles 10 and 11 of the Belgian Constitution, which guarantee equality and non-discrimination, read in conjunction with Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life.
According to the Court, there is no reasonable justification for taking into account only the Belgian sponsor's personal income in family reunification cases involving Belgian nationals, while broader consideration of the household's available financial resources is permitted under other family reunification regimes. Such a restrictive interpretation may result in the refusal of family reunification applications even where the couple, taken together, has sufficient financial means.
The Court further noted that the same statutory provisions are capable of a constitutional interpretation. In its view, the words "to have sufficient means of subsistence" do not necessarily imply that only the Belgian sponsor's personal income may be considered. The stable income of the partner may also be taken into account when assessing whether the means of subsistence requirement has been met. Interpreted in this way, the relevant provisions comply with the Constitution.
Why Is This Judgment So Important?
This judgment is of considerable importance because it brings an end to a restrictive administrative practice that, for many years, resulted in the refusal of numerous residence applications. It strengthens the protection of family life and requires the competent authorities to make a more realistic and comprehensive assessment of the household's financial situation as a whole.
The Court also aligns its reasoning with the case law of the Court of Justice of the European Union, which has previously held that the concept of "sufficient resources" is not necessarily limited to the income of a single individual but may encompass the combined financial capacity of the household.
Consequences for Pending and Future Cases
The implications of this judgment extend well beyond the two proceedings in which the preliminary questions were raised.
First, the Council for Alien Law Litigation will be required to apply the Constitutional Court's interpretation when deciding the cases before it. Where the combined means of subsistence of both partners are sufficient, a refusal can no longer be upheld solely because the Belgian sponsor's personal income is inadequate.
Secondly, the Belgian Immigration Office will have to revise its decision-making practice. New applications may no longer be assessed on the assumption that only the Belgian sponsor's income is relevant. Instead, the authorities must examine all stable, regular and sufficient financial resources that are genuinely available to the household.
The judgment is equally significant for pending appeal proceedings. Where a refusal is based exclusively on the exclusion of the partner's income, applicants may rely directly on this judgment to argue that the interpretation of the legislation applied by the authorities is unconstitutional.
Vanbelle Law Boutique has an established practice in global mobility, an area of law in which family reunification regularly plays a central role. Should this landmark judgment raise questions or create new opportunities for your existing or future case, we would be pleased to advise you.
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