The Constitutional Court annuls presumptions of flight from the return law

The Constitutional Court annulled, by judgment no. 89/2026 of July 16, 2026, three presumptions of absconding and one less coercive detention measure originating from the law of May 12, 2024, on proactive return policy. Published in the Belgian Official Gazette (Moniteur belge) of September 29, 2026, under reference C − 2026/005861 (p. 52151), the judgment also refers two preliminary questions to the Court of Justice of the European Union regarding the medical examination imposed on foreigners.

The decision concludes two petitions for partial annulment, registered under roles 8411 and 8412 and joined by the Court. The petitions were sent by registered mail on January 8 and 9, 2025, and reached the registry on January 10, 2025.

The applicants are the non-profit organization Ligue des droits humains and the non-profit organization Coordination et Initiatives pour et avec les Réfugiés et Étrangers, joined by Vluchtelingenwerk Vlaanderen, Caritas International Belgium, Jesuit Refugee Service-Belgium, Nansen, Médecins du Monde, and Medimmigrant. The non-profit organization Médecins Sans Frontières intervened in the case.

The challenged law, published in the Belgian Official Gazette on July 10, 2024, amends the law of December 15, 1980, on the access to the territory, residence, establishment, and removal of foreigners. The judgment was rendered in French, Dutch, and German by a Court presided over by Pierre Nihoul, assisted by the clerk Nicolas Dupont.

Three presumptions of absconding annulled

The Court annuls Article 51/5, § 6, paragraph 3, 3° and 4°, of the law of December 15, 1980, inserted by Article 12 of the law of May 12, 2024, as well as Article 74/25, § 2, inserted by Article 29 of the same law.

These provisions presumed the absconding of a foreigner who does not attend the interviews of the intensive accompaniment track, who does not cooperate with their transfer — notably by refusing the medical examination — or who does not cooperate with said track. The Court rules that a lack of cooperation does not necessarily indicate an intention to evade the authorities, unlike a recorded absence from the place of residence.

It relies on the Jawo v. Bundesrepublik Deutschland case law of the Court of Justice (March 19, 2019, C-163/17) and notes that Regulation (EU) 2024/1351, which has repealed the Dublin III Regulation since July 1, 2026, does not further conflate absconding with the obligation to cooperate.

An incomplete less coercive detention

The Court also annuls Article 74/28 of the law of December 15, 1980, inserted by Article 33 of the law of May 12, 2024, insofar as it only provides for two types of less coercive detention measures:

• the obligation to report at determined times to the police services or the Immigration Office;
• house arrest.

The legislator omitted the deposit of identity or travel documents, despite being provided as a preventive measure under Article 74/27. This omission violates Articles 10 and 11 of the Constitution, read in conjunction with the requirement of subsidiarity of detention set out in Directives 2008/115/EC and 2013/33/EU and in Regulation (EU) 604/2013.

Two questions to the Court of Justice

Before ruling on the mandatory medical examination under Article 74/23, the Court refers a question to the Court of Justice regarding the compatibility of this measure with Article 8 of Directive 2008/115/EC and with Articles 1, 3, 4, 7, and 35 of the Charter of Fundamental Rights.

The examination may be imposed by coercion when the country of destination or transit, or the carrier, requires it within the framework of a public health emergency declared by the World Health Organization. The authorized means are physical coercion, arm-locks, and handcuffs on the wrists and/or ankles; coercion is excluded for minors.

The preparatory works cite a figure: in 2021, 306 of the 3,091 booked flights could not be carried out due to the lack of a PCR test, representing 27% of bookings.

The judgment immediately modifies the Belgian return regime: the annulled presumptions of flight can no longer justify an extension of the transfer period, and the absence of the deposit of documents among the alternatives to detention must be corrected by the legislator. The response from the Court of Justice will determine the fate of the forced medical examination and the grievances still pending before the Constitutional Court.

Source: Moniteur belge of September 29, 2026, judgment no. 89/2026 of July 16, 2026, rolls 8411 and 8412, reference C − 2026/005861, p. 52151.