The case law of the Belgian Council of State concerning expulsions during its early years (1948-1960)
- By Lydia Bondarenko, VUB
The purpose
of my project for Eutopia was primarily to focus on the case law of the
Belgian Council of State concerning the expulsions of immigrants, beginning
from its establishment in 1946, but also look into the tendencies in the
judicial courts before that period. For background readings, both dr Bruyère
and professor Dhondt provided me with some literature suggestions I could read
into. This prompted my desire to conduct a comprehensive analysis of legislation in order to understand the subsequent case law a little
better. Furtherly, as I mentioned during my presentation on the Peak event in
March, my original intent was to conduct the examination of the Council of
State's case law by using the cases I'd find in the State Archives in
Brussels and extracting the pertinent elements myself. However, I ended up
using them in combination with the historical literature and legal doctrine I already read and as a tool or
illustration to explain the Council's interpretation of the legislation.
In my
research on the expulsions, I attempted at times to emphasize the passages
focusing on the labour migration to stay withing the framework of this years
Eutopia theme. Moreover, Eutopia's objective of fostering cross-campus
connections and learning was also paid attention to, as Guillaume Bonanni
Laporte and I chose to collaborate on a mutually related topic, by exchanging our
found information with one another.
Normative
framework
On migration to Belgium before the First World War
The initial enduring statute pertaining to aliens was enacted in 1897. It remained in force until its suspension through royal decrees in the 1930s. Subsequently, it was entirely replaced by new legislation in 1952. The law of 1897 was a product of the obliged triennial renewal of the aliens law of 22th of September 1835. name="_ednref1" style="font-family: georgia;" title="">[1]
“La distinction entre étrangers et nationaux
est inscrite dans toutes les législations ... Nulle part on a accordé aux
étrangers les mêmes droits qu'aux nationaux, et la raison est simple: c'est
qu'ils n'offrent pas les mêmes garanties”[3]
But also Charles Liedts, an MP who often stood up for the foreigners, agreed and
described them as following:
"des hommes qu'aucun intérêt n'attache à
la stabilité de nos institutions." [4]
The
legislative body unanimously recognized the necessity for differentiated
treatment and perceived it as a safeguard against any potential threat to what
they had constructed with sweat and tears at the outset of the decade.[5]
Rather, the discourse tended towards a debate between the proponents and
opponents of a strong executive power. The executive branch was the entity entrusted
with the responsibility of overseeing the activities of foreigners in Belgium,
which it carried out through the establishment of "the administration of Public
Security”.[6]
This partnership between the Public security (la Sûreté publique) and
the alien police functioned under the surveillance of the Minister of Justice,
yet its officials weren’t accountable to the parliament in any capacity.[7]
This lack of surveillance underwent a lot of criticism mainly from the liberals
and some progressive Catholics, which resulted in an amendment in 1865
requiring that prior to an expulsion, a deliberation in the Ministers Council
had to take place and the decision could only be proclaimed through the medium
of a royal decree.[8]
The Aliens
law of 1897 categorized the foreigners in three distinct groups: domiciliés, aliens with residency status and aliens without residency status.[9]
The first category was considered legally equal to nationals, they were granted
all the rights, with the exception of political rights.[10]
Therefore, expulsing them wasn’t possible. The opposite applied for the aliens
without residency status. The executive granted themselves for these class of
foreigners a carte blanche given that they didn’t base their decisions on the
two expulsion grounds provided by the act, but rather on the old French
legislation (amongst others): the Decree of 23 Messidor year III (11 July 1795) and the law of 28 Vendémiaire year VI (19 October 1797). This allowed to bypass surveillance, as well as the restrictions of the other powers.[11]
The two expulsion grounds in the act were only utilised to promulgate decisions
for aliens with residency status. The granting of the residency status wasn’t
legally regulated and the possession of this status was to be interpreted
broadly.[12]
This extensive interpretation significantly limited the executive power's
discretion in its capacity to expel foreign individuals, rendering the law of
1897 considerably less effective as as a tool for implementing the desired
restrictive policy.[13]
Someone who had been granted residency could only be expelled by royal decree[14]
and in two circumstances:
1. Who by his conduct compromises public
tranquillity
2. Who has been prosecuted or sentenced abroad for
crimes and misdemeanors which give rise to extradition[15]
The second
ground is self-explanatory, while the first ground can be simplified to two
criteria: an individual with residency status must refrain from engaging in any
political activities and must possess sufficient financial resources to sustain
themselves.[16] In
the latter scenario, it suggests that destitute individuals detained for
vagrancy, for instance, were considered a threat to public peace and therefore
subject to expulsion.[17]
While this implies the importance of immigrants being employed, as having a job
provides them with a lesser basis for expulsion, the primary emphasis of the
law though, aligning with the spirit of a post-revolutionary era, lied in the prevention
of political rebellion. There seems to be no interest in the regulation of
incoming and outcoming labor and the internal labour market.[18]
The recruitment is the prerogative of the employer, and government interference
in private matters as these is out of question given the prevailing liberal
ideology in Belgium.[19]
Restrictive
policy on labour migrants introduced in the period preceding the outbreak of
the Second World War
In the
aftermath of the First World War, there was a significant surge in immigration
to Belgium, due to the lack of appeal among Flemish individuals to work in the
heavy industries located in Wallonia, as there was a new mine discovered in
Limburg and the textile industry in the Flemish region was revitalizing again.[20]
The country experienced a substantial influx of workers, primarily from Italy, Poland
and the Netherlands, who arrived to contribute to the reconstruction efforts
following the extensive damage caused by the war.[21]
However,
the Great Depression in the early 1930s precipitated a widespread decline in
various industries, leading to a substantial rise in unemployment.[22]
National trade unions pleaded for a strict far-reaching reform to fight the
internal unemployment and tackle the economic challenges, but this was not to
the liking of the employers and this would require a whole new procedure for
the implementation of new legislation.[23]
Moreover, the legislative power was hesitant to grant the executive branch even
more authority, this time regarding the economic issues.[24]
Nevertheless, the executive began to deem a regulation necessary and developed several implementing decrees in the
course of the 1930s, without changing the Statute on Aliens from 1897.[25]
Consequently,
in 1930, a new category known as the "guest labour migrant" was
established.[26]
From now on, immigration to Belgium and working in the country was dependant of
the approval of the Minister of labour.[27]
This measure did not significantly address the issue of national unemployment
but rather aimed at preventing unemployment among aliens in Belgium. The
executive authority made their approvals depending on the requests of
employers, who assessed the supply and demand in the labour market and would
choose for the cheaper and fitter option, often the foreigners.[28]
Although trade unions had the opportunity to voice their opinions, substantial
changes were ultimately reliant on the goodwill of employers.[29]
At the same
time we see that the executive found a way to circumvent the parliament's
desire to limit the power of the executive, as they granted themselves an
additional role in monitoring incoming labour migrants. However, there was a
growing trend of immigrants choosing to remain in Belgium even after their
employment had concluded.[30]
Additionally, certain workers, particularly in the mining industry, were
directly recruited by employers and were granted residency status without
undergoing the approval process of the Minister of Labour.[31]
The existing legislation appeared to be ineffective in addressing this issue.[32]
Nevertheless, a significant change occurred with the introduction of the Royal
decree of 1936 supplementing and coordinating the provisions relating to the
employment of foreign labor. It was promulgated under "extraordinary"
powers granted to the King (Executive) in 1936 to take effective measures to
find a solution for the unemployment.[33]
This decree
outlined the criteria that needed to be met for foreign individuals to work in
Belgium. This entailed that foreign individuals seeking employment in Belgium
were required to obtain a working license from the Minister of Labour in
advance.[34]
Furthermore, employers were prohibited from hiring foreign workers without the
consent of the executive.[35]
This permit was tied to the specific work, the specific worker and had a
limited duration, with a maximum of 2 years.[36]
By implementing this system, the executive power was able to maintain a balance
between the supply and demand in the labor market and control the flux of wage
immigrants. It allowed them to consider the availability of internal labour
forces while regulating the employment of foreign workers.[37]
Three years
after the previous decree, the royal decree of 1939 was promulgated, granting
special powers to the executive in light of the approaching Second World War.
The Minister of Justice received the power to decide completely autonomously
about the expulsion of aliens, regardless of their status.[38]
In contrast to the law of 1897, the criteria for the expulsion of foreigners
were now open to broader interpretation.[39]
This granted the executive even greater authority than it previously already
possessed, thereby creating additional uncertainty for the aliens in Belgium[40].
Any illegal alien or alien whose presence is considered harmful or dangerous to
the country's security or economy, could be expulsed out of the country.[41]
From this point forward, state intervention in the labour market wasn’t anymore
excluded.
Both
decrees included penal clauses, which could even assign internment if not
complied with the decrees.[42]
Xenophobia and protectionism amongst the Trade Unions and political parties
Despite the
rise in national unemployment during the 1930s crisis, employers continued to
opt for the recruitment of foreign workers due to their lower cost and
willingness to accept unfavorable working conditions, unlike young national
workers who were no longer enticed by heavy industry after the First World War. [43] The provision of minimal aid to
unemployed Belgians, given the large number of unemployed individuals, was
viewed as a threat to the social situation and the Public Treasury. [44]
Another reason for discontent amongst the people was the fact that the employment
demand could easily be met by unemployed Belgians, yet foreign workers were
being hired instead.[45]
The immigrants were often reproached for accepting the bad working conditions and low wages, as this way the employers didn’t have a reason to hire the more
demanding national workers.[46]
Consequently, trade unions began to have the tendency to express their
frustration through a racist and xenophobic discours.[47]
The protectionist
inclination of the Unions is strongly visible in their strongly voiced opinions
about their non-Belgian colleagues. During a "Socialist week," for
instance, one of their reports contained a statement specifically addressing
Italians, where we read:
“Certains groupes d ’Italiens ont des mœurs
déplorables, ils sont sales, mal nettoyés, mal habillés et d’aucuns vivent
dans une promiscuité repoussante! “
EN: “Some groups of Italians have deplorable
morals, they are dirty, badly cleaned, badly dressed and some live in repulsive
promiscuity!”[48]
Except for
the Communist party, which didn’t distinguish between native and foreign
workers, the other political parties showed little concern for the rights of
the immigrant labour forces as well.[49]
In Le Peuple, a socialist newspaper, the Socialist Union made a statement that
indicates their self-proclaimed internationalism and solidarity is limited to
the Belgian labor force and to immigrants, except those with family ties, who
are not perceived as a threat to Belgian workers. :
“Si internationalistes que nous soyons, nous
demandons qu'on songe d'abord aux nôtres, sans travail et sans pain ... certes
nous comprenons qu'on ait pitié des étrangers qui ont fait souche chez nous,
attachés à notre sol par des liens familiaux. Nous ne demandons pas non plus
qu'on renvoie à la frontière de malheureux Italiens qui sont ici des réfugiés
politiques. Mais quant aux autres !”
EN: As internationalist as we may be, we ask
that we think first of ourselves, without work and without bread ... certainly we
understand that we have pity on the foreigners who have taken root among us,
attached to our soil by ties family. Nor are we asking that unfortunate
Italians who are political refugees here be sent back to the border. But as for
the others![50]
Labour
Unions frequently put forward proposals to regulate the labor market, but these
proposals never successfully passed through the Parliament. In 1926 for
instance, during a National Congress of the Socialist Union, a concept was
introduced for a "national immigrant council." This proposed council
would consist of public authorities, employer associations, and the unions
themselves, with the purpose of determining immigration quotas based on labor
market shortages.[51]
Another situation in which the Unions arose, took place due to the economic
downturn when employers fired Belgian forces in the Borinage basin and kept
immigrant workers as labour forces.[52]
The Socialist and Catholic Unions strongly advocated for the expulsion of all
foreign workers and proposed that the vacant positions be filled by redistributing
Belgian miners who had recently become unemployed.[53]
However, the employers, who remained a strong voice through almost the whole
interbellum, asserted their intention to hire based on skills rather then
nationality. [54]
Despite
their demands and proposals failing to gain traction in the political agenda of
the legislative power for nearly two decades, a royal decree is promulgated by
the executive in 1936 reinforcing the Unions wishes of a stronger Government
intervention. By doing so, the executive power responded to the demands of the
population and simultaneously asserted control over immigrants, effectively
bypassing the Parliament once again.[55]
Post-war
legislation on migration to Belgium
Following
the tumultuous era of the Second World War, there emerged a substantial need
for the implementation of a more humane law applying to aliens. The
administration had been using the royal decree from 1939 even after the World
War and had hollowed out their power by extending the decree many times.[56]
The desire
for reform encountered resistance from the executive branch, which had
witnessed a significant expansion of its authority and autonomy during the war
period, due to the granting of the “extraordinary powers”.[57]
Since 1948 the administration of the alien police was housed into the
department of the “public safety”, which implied that her powers would have to
focus on the protection of the national security and the protection of the
public order.[58] With
the approach of the Cold War, the threat of a new war coming Europe’s way, they
deemed it even more necessary to have sufficient resources to be able to expel
the foreigners dangerous to the national security and the public order.[59]
They realised though, that a continuous renewal of the royal decree of 1939
wouldn’t continue to be possible to justify so they ceased under the pressure
of creating a new law, which would be drafted by…themselves![60]
Despite the
draft almost being a copy of the royal decree of 1939, the law passed the
approval of the parliament.[61]
The cry for a reform had silently diminished as there were now more important
points on the political agenda, such as the “royal question” in the 1950’s, and
the aliens themselves lacked the political representation to fight for their
protection.[62]
As in the
decree of 1939, aliens who wished to come to Belgium were obliged to receive a
residency permit from the Minister of Justice before entering Belgium.[63]
The ones without a residency permit could be dismissed by a simple decision of
the minister, called a “renvoi”.[64]
If he, without the permit, had stayed in the country for a longer time this
removal by the minister remained possible under the criteria of the decree of
1939.[65]
The aliens which were granted a residency permit had a little more protection, as
their expulsion was only possible by a royal decree (called “une expulsion” and
issued by the whole administration) and based on only two expulsion grounds.[66]
The criteria of “being a danger to the economy” didn’t pass parliamentary approval for this last category.[67]
This law of 1952 wasn’t a big step forward, on the contrary: the conditions on
which someone was granted a residency permit had not described in the law which continued to give the executive their extensive right to arbitrary
decline a granting of a permit.[68]
Moreover, no one was granted a permanent permit to stay, which put all the
foreigners in risk of getting expelled, except for the “privileged”, who could
register their domicile in the country after the approval of the Consultative
commission for foreigners.[69]
Founding
of the Belgian Council of State in 1946 and its case law on migration cases
Procedure
appeals against expulsions of immigrants before 1948
Challenging
the decision of the Minister before the judicial courts was a possibility for
aliens. However, this didn’t mean that the courts could annul the decisions. The
principle of the separation of powers upheld in the Kingdom, rendered annulments
as a result of legality checks unacceptable.[70]
Any intrusion by the judicial branch into the executive's decision-making
process would violate the established boundary. What the courts could do, was
decide to not apply the decision promulgated, based on art. 107 of the 1831 Constitution[71],
which stated that decisions had to be set aside by the judge if they conflicted with the
law. The court's jurisdiction was limited to examining the external legality of
the matter. This involved verifying if the expulsion decision was issued by the
appropriate authority and if it fulfilled the necessary formal requirements.[72]
Sometimes
the court would use that power to steer the alien policy a bit, by for instance
interpreting some articles differently then the executive did. As an example
the Jones case can be discussed: in 1845 Jones got expelled because of the
lack of means[73].
She fought this decision before the court by stating that she had been living
in the same region for 5 years. Moreover, no royal decree was promulgated for her
expulsion (which was obligatory for people with the residency status).[74]
Despite the Sûreté's objection to her residency status due to the absence of
formal approval, the court argued that since the law did not specify the
required type of domicile, de facto domicile could be considered as well.[75]
This rationale of the court directly contradicted the practice followed by the
Sûreté.
Nevertheless,
the court frequently adopted a strict approach when dealing with foreigners.
The 1897 law did not specify any requirement for motivation in a decision,
which the Cour de Cassation (the Belgian Supreme Court) even interpreted as explicitly prohibiting any
motivation, particularly concerning expulsions based on political grounds.[76]
Consequently, this made it exceedingly challenging for aliens to assert their
rights in court.
Founding
of the Belgian Council of State 1946
The three-yearly renewals of the 1897 Alien Statute were often
accompanied by parlementaires discussions about a way of supervising the
Sûreté.[77]
Proposals to create a distinct institution that could offer guidance to
lawmakers and the executive for well-prepared laws and decrees, frequently
emerged, yet these ideas faced equally frequent rejection.[78]
However, it wasn't until 1911 that the topic was brought up again, and it was
in 1936 when the recognition of its necessity turned into a political discourse.[79]
There were different reasons behind the willingness to start a debate about a
new institution. The legislative authority aimed to find a solution that would
enhance the legal safeguards for the people, providing them with increased
protection against government actions, while the executive regarded it as a
consultative entity that would lend legitimacy to the expansion of their
powers.[80]
Broadening the
authority of the judicial branch by giving it the ability to reform and annul
decisions, was ruled out by the
La Flandria-decision in 1920, where the Supreme. Court stated that this interfering with the
other powers (legislative and executive powers) was prohibited due to the
already mentioned trias politica.[81]
By issuing this ruling, the Court expressed its opposition to the
establishment of any new institution that could potentially encroach upon the
authority of the executive branch.[82]
Nevertheless, despite the Belgian top court's reluctance, the legislative branch remained
determined to establish a body capable of overseeing governmental actions.[83]
As a result, a decision was ultimately reached after World Ward Two, to create a new judicial entity with
a distinct status, apart from the judiciary power, to fulfill this role.[84]
The law on the foundation of the “Conseil d’État” was promulgated in 1946 and in 1948 the administrative court’s first arrests were rendered. From that point forward, an institution was established with the power of deciding about appeals against administrative actions (e.g. Royal decrees, Ministerial decrees), including decisions on expulsions, thus fulfilling its judicial function.[85]
Scepticism
This
innovation didn’t come without struggle. There still remained a lot of
disagreement, primarily revolving around three key topics: the issue of
jurisdiction, the requirement for motivation, and the scope of the Council's
authority.
The
competence of the Council of State to annul expulsion decisions was questioned
by the executive power, which argued that the expulsion should be qualified as
a government’s act , and that the Council of State didn’t have the authority to
legally check a governments act due to, again, the trias politica. The Council
of State rejected this argument and asserted that an expulsion is a
administrative action, which makes it a subject of its jurisdiction according
to article 9 Act of 23 December 1946.[86]
As I
already discussed, before the establishment of this institution, the motivation
of expulsion was considered forbidden since the law of 1897 didn’t mention that
as a condition.[87]
Neither with the new Alien Statute in 1952, did the legislative power mention
any requirement of that kind.[88]
When Council developed its own case law, however, this changed. While the Sûreté attempted to
protect itself by asserting that the release of the files could pose a risk to
public order, the Council of State devised an alternative approach to address
both needs: All the information contained in the files must be made public,
except in the sole circumstance where the disclosure of these documents could
jeopardize public security or pose a threat to it. [89]
Lastly, the
extent of the competence was put in question when, again, the executive argued
that the Council of State could never investigate the case regarding the assessment of facts. Otherwise, the Council would be able to judge the righteousness of the
expulsion, which wasn’t allowed as this was seen as the exclusive competence of the
executive.[90] The
Council of State upheld the principle of separation of powers and accepted that
it would not invest the facts, thereby presuming automatically that the facts
given are true and correctly analysed, except in cases in which an alien would
contest the truthfulness of the facts.[91]
Practice
of the Belgian Council of State since 1948
In the
decree of 1939, as well as in the Law of 1952, being a “danger to country’s
security” was a ground on which an alien (with or without residency permit)
could be expulsed out of the country.[92]
In the Law of 1952 it was even more specifically described as “if the presence
is considered a threat/danger to the public order or the national security”.[93]
The difference between “public order” and “national security” was explained by
the advisory department of the Council of State in an advice to the Minister of
Justice, concerning the draft of the law of 1952.[94]
While the first concept was to be interpreted as “the internal security in the
country”, the latter term was to be understood as “national security in its
relation with other countries”.[95]
From 1948 however, it is up to the judicial body of the Council of State to
fill in these terms based on the cases that would be brought before them.
Being
convicted of a crime frequently served as a strong reason for expelling the
foreign individual due to their potential threat to public safety.
- For
Petrus R., a Dutchman with a long list of his judicial past, an expulsion
decision was promulgated in 1951 for being a threat to the country’s safety, in
accordance with art. 1, 2° of the Royal decree 1939. Despite the decision being
annulled due to substantial formal requirements not being met, the Council of
State did not contest the motive (which wasn’t required) of the expulsion
decision.[96]
- Another
case involved Albert V., who was subjected to expulsion from Lier, a city
in the Province of Antwerp, on the grounds of indecent assault and public indecency, in
accordance with Article 1, 2° of the Royal Decree of 1939 (“danger to the
country’s security”).[97]
In
addition, political activities were also a frequent reason for expulsion and,
even more often, a subject of contention before the Council. Political
dissidents would often be labelled as a threat by the Ministers, and
occasionally the necessity arose in which the Council of State would have to
keep the Ministers from acting against the liberal values of the country.
- In
the Jokiel case, the Council of State reminded the Minister of these
constitutional garantees of freedom of expression and freedom of assembly. These
rights were also granted to foreigners and couldn’t be a possible reason for
expulsion.[98]
Only personal activities could be seen as possible threats against public’s
security. Ludwig Jokiel was openly a Communist who would often express
criticism of domestic Belgian politics. However, this was accepted by the Council of
State as a threat for national security, thus an expulsion ground in
the Law of 1952.[99]
- A similar situation took place involving Calvin H., the chairman of the Bible Watch Tower Society. This was a Jehovah’s society and amongst other ideologies, it opposed itself against conscription, which was still the case in Belgium at that time. The Council of State approved the sole element of having membership in a society as the Bible Watch Tower Society, as being an indication of a threat to the public’s order, thus the internal security in the country.[100]
We can therefore
conclude that political dissidents of other ideologies were not much in danger
of being expulsed, unlike aliens who dared to criticised the Belgian politics.
Also other cases other then convictions or political beliefs, didn’t escape the
possibility of being expelled.
- Victor D. and Marie G., a couple who operated a restaurant known as a gathering
spot for homosexuals, faced the disapproval from the local authorities. This
disapproval eventually led to their expulsion based on the ground of
"endangering the country's safety" as stated in the Royal Decree of
1939.[101]
Conclusion
The establishment of the Council of State meant an improvement for the
immigrants who were subjects of an expulsion decision. While before 1948 the
decisions could not be assessed for their legality, this became possible since
the establishment of the Council. Moreover, it is the Council, and not the
executive branch, that interprets the legal grounds, thus influencing policy.
Additionally, the government will further enhance legal protection by allowing
factual investigations in certain cases and requiring motivation of the
expulsions from the government, with a few exceptions. As a result, the
executive branch lost a significant portion of its discretionary powers,
providing greater legal certainty for immigrants.
[1] F. CAESTECKER, “The
Transformation of Nineteenth-Century West European Expulsion Policy, 1880-1914”
in A. FAHRMEIER and P. Weil (Ed.), Migration control in the North Atlantic
World., New York/Oxford, Berghahn, 2002, (120) 130.
[2] Article 128 of the
Belgian Constitution (now art. 191) states that “Every foreigner on Belgian
territory shall enjoy the protection accorded to persons and property, with
such exceptions as may be established by the law.” So, constitutionally,
exceptions are allowed. Even though there was some protest about the act of
1835, because some members found it was fully undermining the essence of
article 128, all the members of the parliament did agree that a difference in
treatment between the two categories was inevitable.; L. VANDESTEENE,
“Natievorming, nationalisme en vreemdelingen. Beeldvorming rond vreemdelingen en Belgen in de
Kamerdiscussies over de eerste Belgische Vreemdelingenwet”, BTNG-RBHC
1994-1995, (31) 49.
[3] Supplément au MB,
27 augustus 1835
[4] MB , 28 augustus,
1835
[5] M. VAN VYVE, “Les perceptions
de l’étranger”, Hommes & migrations 2018, (53) 58.
[6] N. COUPAIN, “L'expulsion des
étrangers en Belgique (1830-1914)”, BTNG-RBHC 2003, (5) 8.
[7] L. VANDESTEENE, “Natievorming, nationalisme en vreemdelingen.
Beeldvorming rond vreemdelingen en Belgen in de Kamerdiscussies over de eerste
Belgische Vreemdelingenwet”, BTNG-RBHC 1994-1995, (31) 48.
[8] Ibid.; A. MORELLI, Histoire
des étrangers et de l'immigration en Belgique de la préhistoire à nos jours,
Brussels, Vie ouvrière, 127.
[9] F. CAESTECKER, Alien
policy in Belgium, 1840-1940. The Creation of Guest Workers, Refugees and
Illegal Aliens, New York/Oxford, Berghahn, 2000, 9.
[10] F. CAESTECKER, “Vluchtelingen en de transformatie van het vreemdelingenbeleid
in België (1860-1914)”, BTNG-RBHC 2010, (345)
348.
[11] Decree of 23 Messidor year III; Law of 28
vendémiaire year VI; act of the provisional government 6 October 1830; L. JORIS
“Wetgeving op de vreemdelingen grondwettelijke princiepen en rechtsevolutie”, RW 1940, (674) 676.; A. MORELLI, Histoire des étrangers et
de l'immigration en Belgique de la préhistoire à nos jours, Brussels, Vie
ouvrière, 127.
[12] In the Jones affair:
The court ruling required the consideration of de facto domicile, which
contradicted the administration's previous practice of only considering
formally approved residency. (F. CAESTECKER, Alien policy in Belgium,
1840-1940. The Creation of Guest Workers, Refugees and Illegal Aliens, New
York/Oxford, Berghahn, 2000, 10.)
[13] J. DE BOCK, “De vreemdelingenwet van 28 maart 1952
"L'étranger doit être parfait", BTNG-RBHC 2008, (160) 163.
[14] F. CAESTECKER, “The
Transformation of Nineteenth-Century West European Expulsion Policy, 1880-1914”
in A. FAHRMEIER and P. Weil (Ed.), Migration control in the North Atlantic
World., New York/Oxford, Berghahn, 2002, (120) 122.
[15] Law 1897
[16] F. CAESTECKER, Alien
policy in Belgium, 1840-1940. The Creation of Guest Workers, Refugees and
Illegal Aliens, New York/Oxford, Berghahn, 2000, 43.
[17] Ibid. 10.
[18] With exception of
the potatocrisis in the 1840’s, which resulted in a temporary freeze on
migration being imposed (N. COUPAIN, “L'expulsion des étrangers en Belgique (1830-1914)”,
BTNG-RBHC 2003, (5) 8.)
[19] N. COUPAIN, “L'expulsion
des étrangers en Belgique (1830-1914)”, BTNG-RBHC 2003, (5) 8.
[20] F. CAESTECKER
“Travailleurs immigrés flamands en Wallonie” in I. GODDEERIS en R. HERMANS
(eds), Flamands en Wallonie. 1850-2000, LannooCampus, 2018, 58-60.
[21] A. MORELLI, Histoire des étrangers
et de l'immigration en Belgique de la préhistoire à nos jours, Brussels, Vie
ouvrière, 109.
[22] F. CAESTECKER, Alien
policy in Belgium, 1840-1940. The Creation of Guest Workers, Refugees and
Illegal Aliens, New York/Oxford, Berghahn, 2000, 112.
[23] Ibid. 87.
[24] J. DE BOCK, “De vreemdelingenwet van 28 maart 1952 "L'étranger
doit être parfait", BTNG-RBHC 2008, (160) 163.
[25] Ibid.
[26] F. CAESTECKER, Alien
policy in Belgium, 1840-1940. The Creation of Guest Workers, Refugees and
Illegal Aliens, New York/Oxford, Berghahn, 2000, 262.
[27] F. CAESTECKER, “Belgium
and Luxembourg” in K.J. BADE, P.C. EMMER, L. LUCASSEN and J. OLTMER, The
Encyclopedia of European Migration and Minorities From the Seventeenth Century
to the Present, Cambridge University Press, 2011, (44) 48.
[28] F. CAESTECKER, Alien
policy in Belgium, 1840-1940. The Creation of Guest Workers, Refugees and
Illegal Aliens, New York/Oxford, Berghahn, 2000, 60/91.
[29] HANOTIAU (B.),
"Principales sources légales, réglementaires, conventionnelles,
jurisprudentielles et doctrinales en matière des conditions des étrangers en
Belgique", Annales de droit de Louvain, XXX, 1970, no. 4, pp. 576-580
[30] F. CAESTECKER, Alien
policy in Belgium, 1840-1940. The Creation of Guest Workers, Refugees and
Illegal Aliens, New York/Oxford, Berghahn, 2000, 282.
[31] Ibid.
[32] J. DE BOCK, “De vreemdelingenwet van 28 maart 1952
"L'étranger doit être parfait", BTNG-RBHC 2008, (160) 163.
[33] A. MORELLI, Histoire des étrangers
et de l'immigration en Belgique de la préhistoire à nos jours, Brussels, Vie
ouvrière, 126.
[34] Art. 2, Royal
Decree supplementing and coordinating the provisions relating to the employment
of foreign labor 31 March 1936
[35] Art. 1, Royal
Decree supplementing and coordinating the provisions relating to the employment
of foreign labor 31 March 1936
[36] A. MORELLI, Histoire des étrangers
et de l'immigration en Belgique de la préhistoire à nos jours, Brussels, Vie
ouvrière, 131.
[37] A. MORELLI, Histoire des étrangers
et de l'immigration en Belgique de la préhistoire à nos jours, Brussels, Vie
ouvrière, 107.
[38] J. DE BOCK, “De vreemdelingenwet van 28 maart 1952
"L'étranger doit être parfait", BTNG-RBHC 2008, (160) 163.
[39] Ibid. 164.
[40] Ibid.
[41] Art. 1, 2° Royal
decree on the Alien Police 28 September 1939
[42] L. JORIS “Wetgeving op de vreemdelingen grondwettelijke princiepen en
rechtsevolutie”, RW 1940, (674) 677.
[43] F.
CAESTECKER en A. MORELLI, “Het bewogen ontstaan van een vluchtelingenbeleid”, BTNG-RBHC
2010, (383) 387.; F. CAESTECKER, Alien policy in Belgium, 1840-1940. The Creation of
Guest Workers, Refugees and Illegal Aliens, New York/Oxford, Berghahn,
2000, 127.
[44] F.
CAESTECKER en A. MORELLI, “Het bewogen ontstaan van een vluchtelingenbeleid”, BTNG-RBHC
2010, (383) 387.
[45] Ibid.
[46] A.
MORELLI, Histoire des étrangers et de l'immigration en Belgique de la
préhistoire à nos jours, Brussels, Vie ouvrière, 291.
[47] R. VAN DOORSLAER, Gewillig België Overheid en Jodenvervolging in
België tijdens de Tweede Wereldoorlog, Antwerpen, Meulenhoff/Manteau, 2007, 66.
[48] A. MORELLI, “Stéréotypes
nationaux et préjugés raciaux aux XIXe et XXe siècles”, RBPH/BTFG 1982,
(43) 52.
[49] A.
MORELLI, Histoire des étrangers et de l'immigration en Belgique de la
préhistoire à nos jours, Brussels, Vie ouvrière, 167.
[50] Ibid.
[51] F. CAESTECKER, Alien policy
in Belgium, 1840-1940. The Creation of Guest Workers, Refugees and Illegal
Aliens, New York/Oxford, Berghahn, 2000, 96.
[52] Ibid. 86.
[53] Ibid. 87.
[54] Ibid.
[55] J. DE
BOCK, “De vreemdelingenwet van 28
maart 1952 "L'étranger doit être parfait", BTNG-RBHC 2008, (160) 163.
[56] J. DE
BOCK, “De vreemdelingenwet van 28
maart 1952 "L'étranger doit être parfait", BTNG-RBHC 2008, (160) 164-165.
[57] Ibid 165.
[58] E. PUT, Het Ministerie van Justitie
(1831-1988). Deel I: Organisatiestructuur van de centrale administratie en de
adviesorganen, Brussel, 1990, 88-90.
[59] J. DE BOCK, “De vreemdelingenwet van 28 maart 1952 "L'étranger doit être
parfait", BTNG-RBHC
2008, (160) 166.
[60] Ibid. 169.
[61] Ibid. 172.
[62] Ibid. 171.
[63] Art. 1, 1° Royal
Decree on the Alien Police 28 September 1939; Art. 2 Law on the Alien Police 28
March 1952
[64] J. GILISSEN, “Le statut des
étrangers en Belgique du XIIIe au XX siecle” in L'étranger (Deuxième
partie), Recueil de la Société Jean Bodin, Brussels, Ed. de la librairie
Encyclopédique, 1958, (231) 320.
[65] J. DE BOCK, “De vreemdelingenwet van 28 maart 1952 "L'étranger doit être
parfait", BTNG-RBHC
2008, (160) 172
[66] Art. 4A Law on the
Alien Police 28 March 1952
[67] Art. 4A Law on the
Alien Police 28 March 1952 a contrario
[68] J. DE BOCK, “De vreemdelingenwet van 28 maart 1952 "L'étranger doit être
parfait", BTNG-RBHC
2008, (160) 172.
[69] J. GILISSEN, “Le statut des
étrangers en Belgique du XIIIe au XX siecle” in L'étranger (Deuxième
partie), Recueil de la Société Jean Bodin, Brussels, Ed. de la librairie
Encyclopédique, 1958, (231) 320.
[70] B. BLERO, Le
Conseil d'Etat de Belgique cinquante ans après sa création (1946-1996). Actes
du colloque du 19 et 20¬décembre 1996, Brussels, Bruylant, 1999, 7.
[71] Now art. 159
Belgian Constitution
[72] L. CARENS, Analyse van de
rechtspraak van de Belgische raad van state in verband met vreemdelingen die
gebruik maken van het recht van vrije meningsuiting, van vereniging en van
vergadering, 29.
[73] F. CAESTECKER, Alien policy
in Belgium, 1840-1940. The Creation of Guest Workers, Refugees and Illegal
Aliens, New York/Oxford, Berghahn, 2000, 10.
[74] Ibid.
[75] Ibid.
[76] L. CARENS, Analyse van de
rechtspraak van de Belgische raad van state in verband met vreemdelingen die
gebruik maken van het recht van vrije meningsuiting, van vereniging en van
vergadering, 30.
[77] N. COUPAIN, “L'expulsion des
étrangers en Belgique (1830-1914)”, BTNG-RBHC 2003, (5) 14.
[78] F. MULLER, “Henri Velge,
l'artisan du Conseil d'État belge (1911-1946)”, BTNG-RBHC 2007, (143) 144.
[79] Ibid. 145.
[80] Ibid. 145.
[81] B. BLERO, Le
Conseil d'Etat de Belgique cinquante ans après sa création (1946-1996). Actes
du colloque du 19 et 20¬décembre 1996, Brussels, Bruylant, 1999, 74.
[82] F. MULLER, “Henri
Velge, l'artisan du Conseil d'État belge (1911-1946)”, BTNG-RBHC 2007,
(143) 148.
[83] M. BOES, “Evaluatie van de
evolutie van de bestuursrechtspraak: het dualisme op zijn retour?”, TBP 2009,
(259) 262.
[84] B. BLERO, Le
Conseil d'Etat de Belgique cinquante ans après sa création (1946-1996). Actes du colloque du 19 et
20¬décembre 1996,
Brussels, Bruylant, 1999, 73-74.
[85] L. CARENS, Analyse van de
rechtspraak van de Belgische raad van state in verband met vreemdelingen die
gebruik maken van het recht van vrije meningsuiting, van vereniging en van
vergadering, 30.
[86] Case Bertoldi, nr.
1.614.218
[87] Ibid.
[88] Law 1952 a
contrario
[89] L. CARENS, Analyse van de rechtspraak van de
Belgische raad van state in verband met vreemdelingen die gebruik maken van het
recht van vrije meningsuiting, van vereniging en van vergadering, 31.
[90] R.V.St. 13 juli 1953- Arr. en adv. R.V.St. nr.
2670 inz. Cazier
[91] L. CARENS, Analyse van de rechtspraak van de
Belgische raad van state in verband met vreemdelingen die gebruik maken van het
recht van vrije meningsuiting, van vereniging en van vergadering, 33.
[92] Since the Council of
State only started in 1948, the royal decree of 1939 was in effect until the
Law of 1952 was promulgated; Art. 1 Royal decree on the Alien Police 28
September 1939; art. 3, 2° and art. 4A, 1° Law on the Alien Police 28 March 1952
[93] art. 3, 2° and art. 4A, 1° Law on
the Alien Police 28 March 1952
[94] L.
CARENS, Analyse van de rechtspraak van de Belgische raad van state in
verband met vreemdelingen die gebruik maken van het recht van vrije
meningsuiting, van vereniging en van vergadering, 34.
[95] Ibid.
[96] Petrus Roels, nr.
1.039.693
[97] Albert Vitalis, nr.
A135.231
[98] L. DE WILDE, Geplande wijzigingen aan de wet
van 28 maart 1952 op de vreemdelingenpolitje, RW 1972, (1081)
1097.
[99] Ludwig Jokiel, nr. 1.272.035
[100] Calvin Holmes, nr. 2.052.528; L.
CARENS, Analyse van de rechtspraak van de Belgische raad van state in
verband met vreemdelingen die gebruik maken van het recht van vrije
meningsuiting, van vereniging en van vergadering, 38.
[101] Victor Dentel &
Marie Goetz, nr. A169.863
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