UA
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DEIn Belgium today, newborn children of Ukrainians under temporary protection are being denied protection themselves. After 90 days, they risk expulsion.
This is not a marginal administrative error. It is the result of a structural failure in the way Belgium has transposed and applied EU law — a failure that places infants in legal limbo, threatens family unity, and undermines the very purpose of temporary protection.
From Protection to Migration: A Legal Design Error
In August 2025, Belgium adopted a law amending the Aliens Act of 15 December 1980 (Loi modifiant la loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers). Through this act, Belgium partially transposed Article 15 of the Temporary Protection Directive (Directive 2001/55/EC).
However, instead of implementing temporary protection as an autonomous emergency regime, the Belgian legislature embedded it into the logic of ordinary migration law — including family reunification rules designed for long-term or permanent residence.
This legislative choice created a conflict of regimes. Municipal administrations now apply migration-based eligibility tests to beneficiaries of an emergency protection mechanism — and to their children.
The result is not implementation, but distortion.
What Article 15 of the Temporary Protection Directive Actually Says
Article 15(1) of the Directive begins with a contextual clause:
“For the purpose of this Article, in cases where families already existed in the country of origin and were separated due to circumstances surrounding the mass influx…”
This formulation does not establish an exclusionary condition for individual family members. It frames the scope of the mechanism: situations where war has torn families apart.
Crucially, the Directive then defines family members to include:
“the minor unmarried children of the sponsor… without distinction as to whether they were born in or out of wedlock or adopted.”
“Without distinction” means exactly that.
There is no requirement regarding:
- date of birth,
- place of residence,
- physical existence at the moment of flight.
Children are included ipso iure as part of family life.
How Belgian Law Changed the Meaning
The Belgian provision (Article 57/34, §2 of the Aliens Act) replaces the EU framing clause with a rigid material condition:
“pour autant que la famille était déjà constituée au moment des circonstances…”
This is not a neutral translation.
- “families already existed” (EU law) describes a factual, social reality.
- “famille déjà constituée” (Belgian law) freezes family composition at a specific moment in time.
What was contextual becomes exclusionary.
What was dynamic becomes static.
This transformation narrows the personal scope of protection — something EU law does not allow.
If a national measure excludes a category that EU law includes, it is not transposition. It is an unlawful derogation.
Children Pushed into a Legal Vacuum
Municipalities now tell mothers under temporary protection that their newborn children must apply through ordinary family reunification procedures.
This is legally wrong.
Family reunification under migration law is:
- lengthy,
- conditional,
- income- and housing-dependent,
- designed for permanent settlement.
Temporary protection is:
- collective,
- time-limited,
- emergency-based,
- non-migratory in nature.
Redirecting children from temporary protection into migration or asylum procedures unlawfully substitutes one regime for another. As a result, children:
- fall outside temporary protection,
- cannot realistically access asylum,
- and end up without legal status, healthcare coverage, or security.
The “Pre-Existing Family” Argument — And Why It Fails
The phrase “family ties must have existed before arrival” is an anti-abuse clause, not an ontological definition of family.
Its purpose is to prevent:
- fictitious marriages,
- paper relationships,
- artificial migration strategies.
It was never meant to exclude children born naturally during displacement.
Interpreted literally against children, this logic would mean:
- refugees have no right to have children in exile,
- newborns are “illegal” by birth,
- the state punishes families for biological reality.
Such an interpretation is legally impossible.
European Human Rights Law Is Clear
European courts have consistently held that:
- Family life is not a frozen snapshot.
- A single mother constitutes a family unit.
- Family life may exist even before a child is born.
- A child does not create a new family — the child joins an existing one.
The European Court of Human Rights stated in Marckx v. Belgium that:
“The relationship between a mother and her child amounts to family life from the moment of the child’s birth.”
In Keegan v. Ireland, the Court confirmed that family life may exist even before birth, where close personal ties exist.
Under Articles 7 and 24 of the EU Charter of Fundamental Rights and Article 8 ECHR:
- the best interests of the child are paramount,
- impossible conditions cannot restrict fundamental rights,
- family unity must be interpreted dynamically.
Requiring a newborn to have “resided in Ukraine before 24 February 2022” is an impossible condition — and EU law cannot be interpreted in a way that makes rights dependent on impossibility.
A Structural Governance Failure
Temporary protection was conceived as a short-term emergency measure. When applied over several years, it must be interpreted dynamically — not restrictively.
Belgium has instead:
- transplanted migration logic into emergency protection,
- absolutised limitations drafted in 2001,
- ignored effet utile,
- sidelined the best interests of the child.
The consequence is not a technical error, but a systemic governance failure.
When emergency law starts producing undocumented newborns, family separation, and legal vacuums, something has gone profoundly wrong.
Temporary Protection Must Protect Families
A child cannot be denied protection for not having existed on a given date.
Emergency protection was never designed to regulate reproduction in exile. Interpreting temporary protection as freezing family life at the moment of flight turns a humanitarian instrument into a demographic control mechanism.
This is no longer only a legal question.
It is a question of values, credibility, and child safety.
And it demands an urgent political response.