Cour de cassation de Belgique [Court of Cassation of Belgium] No C.19.0197.F

Parties (including notable third parties)

MA (Appellant); The State of Belgium (represented by the Secretary of State for Asylum and Migration, attached to the Minister of the Interior) (Respondent)

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Summary of Facts

The Appellant, MA, was a person of Palestinian origin who held a valid residence permit and identity card issued by the Palestinian Authority. In Belgium, he pursued two separate legal claims. First, he sought recognition as a stateless person before the Liège Tribunal of First Instance. Second, he applied for a right of residence before the Liège Court of Appeal and ultimately the Court of Cassation.

On 11 October 2013, the Liège Tribunal of First Instance ruled on his status, finding that because Belgium does not recognise Palestine as an independent state, MA could not be considered a Palestinian national. Since he possessed no other nationality, the Court recognised him as stateless, and this decision became final.

Following this recognition, MA initiated proceedings against the Belgian State to secure a right of residence, as Belgian law at the time did not automatically grant recognised stateless persons the right to remain in the country. He relied on Belgian Constitutional Court jurisprudence, which held that stateless persons who had involuntarily lost their nationality and could not obtain a legal and durable right of residence elsewhere were entitled to residence rights comparable to those of recognised refugees under Article 49 of the Aliens Act.

On 8 February 2019, the Liège Court of Appeal rejected his request. The Court reasoned that his statelessness recognition stemmed solely from Belgium's non-recognition of Palestine as a state, not from an actual loss of Palestinian nationality. Furthermore, the Court noted that because MA held a Palestinian Authority identity card, it was plausible he could obtain a residence permit in Palestine. The court concluded that MA had failed to demonstrate an absence of ties to Palestine or an inability to secure residence there.

MA then appealed this decision to the Belgian Court of Cassation.

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Legal Arguments

Legal Arguments by the Appellant

MA argued that the Liège Court of Appeal wrongly denied him a right of residence equivalent to that of a recognised refugee. He relied on the Belgian Constitutional Court's judgment No. 1/2012, which found that when a stateless person has involuntarily lost his nationality and cannot obtain a legal and durable residence permit in another State with which he has connections, the legislative gap is discriminatory. MA contended that a judge cannot refuse such a stateless person the right to residence when both conditions are met.

MA also argued that a legal and durable residence permit must come from a recognised State, and an unrecognised State cannot issue a permit recognised as such in Belgium. Since Belgium does not recognise Palestine, the Court of Appeal could not legitimately conclude that he might obtain a residence permit there. Second, MA argued that the Court of Appeal's judgment was contradictory and violated res judicata under Article 23 of the Judicial Code. The 2013 judgment had definitively recognised him as stateless on the ground that Palestine is not a recognised State. However, the Court of Appeal simultaneously held that he was stateless while treating him as if he still possessed Palestinian nationality, thereby destroying the binding effect of the 2013 judgment.

Legal Arguments by the Respondent

As reflected in the Court of Appeal's reasoning that the State defended, the State’s argument was that MA did not qualify for a right of residence. According to the State, MA's recognition as stateless was merely a consequence of Belgium's refusal to acknowledge Palestine as an independent state and did not signify that he had genuinely lost Palestinian nationality. In other words, his stateless status was a product of diplomatic non-recognition, not an actual deprivation of nationality. The State further contended that because MA held a legal residence permit and even an identity card issued by the Palestinian authority, it was plausible that he could obtain a residence permit in that region, and that MA does not demonstrate in the context of this procedure that he has no ties with Palestine.

Outcome

The Belgian Court of Cassation allowed the appeal. It set aside the judgment of the Liège Court of Appeal of 8 February 2019 and held that the Liège Court of Appeal had violated Article 23 of the Judicial Code by disregarding the authority of res judicata attached to the 2013 judgment that recognised MA as stateless.

By stating that MA's recognition as stateless did not mean he had lost Palestinian nationality, the Court of Appeal effectively accepted that MA possessed Palestinian nationality. This conflicted directly with the earlier tribunal's finding that MA had no nationality, thereby violating Article 23 of the Belgian Judicial Code and disregarding the principle of res judicata.

Because the Court of Cassation found this second ground of appeal to be well-founded, it did not need to consider the first ground. The Court annulled the Court of Appeal's judgment, and the case was remitted to the Mons Court of Appeal for reconsideration.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	The Belgian Constitution	Article 10: Equality (non-discrimination), Article 11: Equality and non-discrimination, Article 149: Obligation for judgments to be reasoned
Domestic	Aliens Act of 15 December 1980	Article 49: Right of residence for recognised refugees

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Giulia Bittoni, ‘Recognition of the Status of Stateless Persons and Right of Residence for Palestinians in Belgium: Applying the Pricniple of Res Judicata to Avoid Divergence Among Court’ (2024) 6(2) Statelessness & Citizenship Review 239, 239-246.

• The author argues that the Court of Cassation's judgment established two important points: first, that a judgment recognising stateless status means the person has no nationality, and second, that Belgian courts must not challenge final judgments from other Belgian courts that have recognised statelessness, as these judgments carry the authority of res judicata.
• The author concludes that ‘the absence of legislation and consistent case law on the recognition of the status of stateless persons poses a risk that individuals in similar situations, particularly Palestinians, may receive disparate treatment depending on the court assessing their applications’ (page 245). The author calls on the Belgian legislature to address these gaps by recognising a right of residence for stateless persons comparable to that granted to recognised refugees.