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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.

(Image: the seat of the Belgian Council of State in Brussels; source: Wikimedia Commons)


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]

Initially meant to be permanent, this act of 1835 was the source of an intense and vigorous debate at the time. The debate didn’t concern the difference in treatment between aliens and native Belgians.[2] Jean-Baptiste Nothomb for instance, a supporter of the upcoming law, shared following opinion:

“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 groupsdomiciliés, 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]

(Soure: Belgian State Archives)

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]

(Source: Belgian State Archives)


  • 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.


Lydia Bondarenko

[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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