The Constitutional Court redefines means of subsistence in family reunification

The Constitutional Court, by its judgment no. 38/2026 of April 2, 2026, rules that the interpretation of the law on foreigners, which reserves the proof of the means of subsistence required for family reunification solely to the Belgian sponsor, is unconstitutional. The judgment, rendered on preliminary questions from the Council for Alien Law Litigation, is published in the Belgian Official Gazette of September 23, 2026, pages 51301 (Dutch) and 51308 (French), under reference [C − 2026/006086]. It expands the residency possibilities for registered partners by allowing the stable resources of the person joining the sponsor to be taken into account.

The two joined cases, registered under rolls 8397 and 8398, concern articles 40ter, § 2, paragraph 2, 1°, and 42, § 1, paragraph 2, of the law of December 15, 1980, on the access to the territory, residence, establishment, and removal of foreigners. The Council for Alien Law Litigation had referred the matter to the Court via two judgments nos 318.729 and 318.724 of December 17, 2024, received by the registry on December 19, 2024.

The condition of “stable, sufficient, and regular” means of subsistence imposed on the Belgian sponsor was introduced by the law of April 25, 2007, initially limited to ascendants, then extended to the spouse, registered partner, and descendants by the law of July 8, 2011, and maintained by the law of May 4, 2016. According to the 2011 preparatory works, more than 50% of visas issued in Belgium fall under family reunification, the primary source of legal immigration.

What the Court ruled

The Court examines the provisions according to the interpretation of the lower court, according to which only the personal means of subsistence of the Belgian sponsor who has not exercised their right to free movement may be taken into account, to the exclusion of those of their family member. It rules that this reading is incompatible with articles 10 and 11 of the Constitution, read in combination with article 8 of the European Convention on Human Rights.

Another interpretation is possible: the wording of the income requirement, stating that the sponsor must “have” sufficient means, does not prevent the stable resources of the family members joining them from being taken into account. Thus interpreted, the same provisions do not violate the Constitution.

An unchanged threshold, an expanded base

The reference amount remains fixed at 120% of the amount referred to in article 14, § 1, 3°, of the law of May 26, 2002, concerning the right to social integration, indexed. The assessment takes into account the nature and regularity of the means. The following are excluded:

• the social integration income;
• financial social assistance;
• basic family allowances and supplements;
• professional integration allowances and the transition allowance;
• unemployment benefits, unless the sponsor proves that they are actively seeking work.

A break with previous case law

The Court had ruled, by judgment no. 121/2013 of September 26, 2013, and then by judgment no. 149/2019 of October 24, 2019, that the financial situation of the sponsor, and not that of their spouse, could be decisive. The Council of State had confirmed this interpretation, notably on August 19, 2024 (no. 260.501) and March 2, 2023 (no. 255.940).

The Court relies on the judgment of the Court of Justice of the European Union of October 3, 2019 (case C-302/18, X), according to which it is not the source of the resources, but their durable and sufficient nature, that is decisive. It notes that the difference in treatment between Belgians and third-country nationals is not justified, as a significant number of Belgian sponsors only obtained nationality late.

The Council of Ministers, which contested the delimitation of the compared categories and the relevance of the question, saw its exceptions rejected.

Scope of the decision

The judgment was rendered in Dutch and French on April 2, 2026, presided over by Luc Lavrysen, with Pierre Nihoul as second president and Frank Meersschaut as clerk. The Court limits its examination to the hypothesis of the registered partner within the meaning of Article 40bis, § 2, paragraph 1, 2°, of the law of December 15, 1980.

In practical terms, courts and the administration can no longer automatically exclude the income of the registered partner when analyzing needs: residence applications based on a registered partnership with a settled Belgian must now be assessed taking these resources into account, provided they are stable, regular, and sufficient.

Source: Belgian Official Gazette of September 23, 2026, judgment no. 38/2026 of the Constitutional Court of April 2, 2026, rolls 8397 and 8398, [C − 2026/006086], p. 51301 (NL) / 51308 (FR).