A 225€ fee for non-EU citizens’ residence permits would set one of the highest fees in the EU. The median fee in the EU is around 130€. While the Minister referred to France and Netherlands–neighbours with some of the EU’s highest fees–he skipped over neighbours with average fees: Germany (100-135€) and Luxembourg (50€). A 225€ fee could contravene EU law by acting as a disproportionate obstacle for low-income immigrants who meet all the legal requirements for family reunification or long-term residence.
Since 11 October 2014, Belgium has been governed by a coalition of Liberal, Christian Democrat and Flemish Nationalist parties. The government agreement did not appear to promise major changes in the legal immigration policy, given the recent major restrictions with the 2011 family reunion law and 2012 nationality law (see MIPEX blog). Instead, the agreement’s main thrust on legal immigration is to fight potential fraud and abuse. Besides this, reunited non-EU family members would have to wait five years for an autonomous residence permit. The Parliament would acquire the discretionary powers to naturalise wealthy foreigners for their ‘economic merit’. And vague reference is made to a ‘new Immigration Code’.
One carefully crafted proposal escaped the eyes of commentators:
“With due respect to EU Law and the European Convention on Human Rights, the Law of 14 March 1968 (revoking the laws regarding residence fees for foreigners coordinated the 12 October 1953) will be adapted. Maximum amounts will be provided.”
But now the government is experiencing an increased level of scrutiny of its immigration proposals, thanks to the racially charged statements of its new Asylum and Migration Minister, who hails from the Flemish Nationalist party. On 21 November, the media pounced on the fee plan following an interview with the Minister:
“It’s a fee to cover the administrative costs of the application. This is already done in countries like France and the Netherlands. The amounts will be fixed. But they will be equitable.”
On 3 December, journalists further reported that this ‘newcomers’ tax’ could cost 225€ for all newcomers. This proposal would transfer to the federal level a proposed ‘immigration tax’ that the Flemish Nationalist party tried to introduce last year in Antwerp for all newcomers, including EU citizens. The government at least would exempt EU citizens, potential refugees, trafficking victims, unaccompanied minors.** The Minister hopes to push this tax through as soon as possible before the end of the year. Parliament must debate the initiative and the Council of State must assess its compliance with the Constitution, EU law and the ECHR.
225 euros: One of the highest fees in the EU
The Minister continues to justify this ‘newcomers’ fee’ by referring to neighbouring EU countries with much higher fees:
“This amount is what the Netherlands requires. We are asking for a similar amount.”
To fact check these statements, MIPEX data on fees is rather general and dates from 2010. The best and latest source — and probably the one being used by the Minister — is an April 2014 European Commission Report (EMN Inform: Applicable fees for issuance of residence permits to third-country nationals).
The report’s officially-provided tables confirm that a fee of 225€ for non-EU family reunion or long-term residence would be one of the highest fees in the EU, after countries like Greece, Bulgaria, Portugal, Finland and France. The median fee in the EU for long-term residence or family reunification is much lower, around 130€. The majority of reporting EU Member States set these fees at under 150€.
While the Minister referred to France and Netherlands–the neighbours with the highest fees–he skipped over the neighbours with average fees: Germany (100-135€) and Luxembourg (50€).
While the government argues that this high fee is necessary to cover the costs of the application, this cross-country comparison suggests that this ‘cost-covering’ principle does not apply in most EU countries, neither for non-EU citizens, nor for EU citizens, nor for nationals. Indeed, the cost-covering principle is disputable from a good governance perspective, as passing along all costs to the applicant removes a major incentive for authorities to cut costs and become more efficient.
An ‘equitable’ fee for non-EU citizens is the fee for Belgians and EU citizens
Currently, Belgium has the most equitable fee in the EU for non-EU citizens’ residence permits (15,20€), which is the most similar to its fees for national ID cards (up to 25€) or for EU citizens’ permanent residence cards (17,50€). Also, the fees in Belgium, Germany, and Luxembourg are the least burdensome when compared to their country’s monthly average wage. The current fee level in Belgium is around 0,5% of the monthly average wage (1,3% in Luxembourg and 3,3% in Germany).
MIPEX would argue that Belgium’s basic fee is a best practice that allows immigrants who meet all of the legal requirements to obtain the secure residence that will improve their social and labour market participation in their new country. Setting a similar fee as for the national ID card does not constitute an additional obstacle that can undermine the right to family reunification and long-term residence for low-income immigrants.
MIPEX’s normative standards come from EU law, which guarantees EU citizens the same fees as for national ID cards and requires that fees for non-EU citizens are reasonable, proportionate, and effective for promoting their family reunification and residence security. The European Court 0f Justice has already applied this high level of scrutiny for EU-regulated permits for non-EU citizens, such as family reunification and long-term residence, in the case C-508/10 Commission v. Netherlands:
“While it is open to Member States to make the issue of residence permits under Directive 2003/109 subject to the levying of charges, the level of those charges must not have either the object or the effect of creating an obstacle to the obtaining of the rights conferred by that directive, otherwise both the objective of integration and the spirit of that directive would be undermined.”
The European Court of Justice judged that the Dutch acted disproportionately by setting fees for non-EU citizens that were at least 7 times higher than for a Dutch national ID.
Raising the fees for non-EU citizens in Belgium to 225€ would cross this threshold and be 9 times higher than the fee for a Belgian national ID. A fee of 225€ would constitute 7,0% of the monthly average wage in Belgium. This fee would be particularly disproportionate for non-EU citizens in Belgium, whose income is on average half that of Belgian citizens and whose risk of poverty is three times greater, according to the latest EU Integration Indicators.
Following the 2012 Commission v. Netherlands judgement, the Netherlands has already lowered its fees–and may lower them further if more cases emerge of non-EU applicants facing major financial obstacles in practice. The European Commission has publicly made a greater commitment to enforce the common EU policy on legal migration, including family reunification and long-term residence. On this basis, it would not be surprising if the Commission is preparing to take these high-fee countries to court, such as Greece, Bulgaria, Portugal and Finland. If the 225€ fee is approved by Parliament, Belgium could be next.
**Note that European Court of Justice case-law may also require Turkish nationals to be exempt from these higher fees, as is now done in the Netherlands, following the Case C-92/07 Judgement.