On 16 July 2026, the Belgian Constitutional Court delivered its judgment no. 89/2026 concerning two actions for annulment brought by several organisations against provisions of the Act of 12 May 2024, which introduced measures aimed at strengthening the removal of third-country nationals staying irregularly in Belgium. The contested measures concerned mandatory medical examinations for the purpose of removal, presumptions of absconding in Dublin transfer procedures, the obligation to cooperate with return procedures and alternatives to detention.
First, the Court raised doubts as to whether mandatory medical examinations imposed for the purpose of enforcing return decisions are compatible with Directive 2008/115/EC (the ”Return Directive”). It observed that a compulsory examination may affect human dignity and interfere with physical integrity, particularly where it can be imposed against the person’s will for non-therapeutic purposes and without requiring the authorities to provide alternatives. It therefore referred two questions to the Court of Justice of the European Union (CJEU) concerning the compatibility of the measure with the Return Directive and the Charter of Fundamental Rights of the European Union.
Second, the Court distinguished between circumstances indicating an intention to abscond from the authorities and a failure to cooperate with the transfer procedure. It considered that a presumption of absconding may be justified where a person fails to report to the assigned reception facility or leaves it without notifying the Immigration Office of an address within three working days, while allowing the person to subsequently demonstrate that they did not intend to abscond from the authorities. By contrast, failure to cooperate with a mandatory medical examination or an intensive support programme does not justify such a presumption where the person remains at their place of residence. The Court therefore annulled the relevant provisions.
Third, the Court clarified that the obligation to cooperate does not apply to a person who has lodged an appeal with suspensive effect against a return decision and is consequently entitled to remain in Belgium pending that appeal.
Lastly, the Court held that even where alternatives to detention are presumed to be ineffective, the authorities must carry out a specific and individual assessment before resorting to detention. It further annulled the legislation insofar as it provided for only two types of alternative measures and did not include the possibility of requiring the person concerned to surrender their identity or travel documents.