Belgium

BELGIUM

General information

Immigration was officially halted in 1974 having initially been encouraged for economic reasons. Since this date, the only legal means for non-EU citizens to enter Belgian territory for periods longer than 3 months have been through asylum, family reunification and student visas. As a result of this closing of the borders, numerous migrants are ‘undocumented’ and fight for regularisation (two regularisation programmes took place in 1974 and 1999). The corollary of this zero immigration policy has been the introduction of numerous measures to toughen the law with regard to foreigners including the creation of closed centres used to deport irregular migrants or to prevent them from leaving airports [1]. Belgium is regularly criticised by international organisations [2]for not respecting migrant rights and has received three convictions from the European Court of Human Rights in the last few years for matters related to the detention and deportation of migrants [3] . Belgium has also become a transit country for migrants hoping to reach other countries in the European Union, primarily the United Kingdom [4].
Since 2008, a Ministry for Migration and Asylum Policy has been in place.

Legislation on immigration

The law on “access to the territory, residence, settlement and expulsion of foreigners” was passed on December 15th 1980. This text has since undergone numerous modifications. The latest amendment involved a vast reform of asylum procedures, of conditions for family reunification and of the possibilities for obtaining a residence permit from within the territory. This reform was passed in September 2006. Belgium has signed and ratified the majority of the existing international human rights conventions.

Asylum

In 2000, 42,691 people came to Belgium to claim asylum [5]. Since this historic high, the number of asylum seekers has progressively dropped. In 2006, 11,587 people claimed asylum, and in 2007 this number was 11,115. In 2007, 1,841 people were granted refugee status and 281 were granted subsidiary protection. The 5 nationalities most represented amongst those granted refugee status were : Russia, Rwanda, Iraq, Serbia and the Democratic Republic of Congo. As for the nationalities most often receiving subsidiary protection, these were : Iraq, Somalia, Afghanistan and Eritrea [6]. The number of asylum seekers detained in closed centres in 2007 was 480 according to the government, to which those migrants who claim asylum at the border and who are automatically detained should be added [7] .
The last major reform of the asylum procedure increased the possibilities for the detention of asylum seekers and authorised longer periods of detention [8].

The application of the Dublin Convention is a priority for Belgium. In 2007, Belgium asked other European Union states to take back 1,811 asylum seekers under the Dublin agreement. These people are detained with increasing frequency : in 2007, 762 asylum seekers were detained in closed centres as part of the application of the Dublin Convention [9] .

Detention

The various closed centres
The legal framework concerning closed centres is laid out in the Law of December 15th 1980 on access to the territory, residence, settlement and expulsion of foreigners and in the Royal Decree of August 2nd 2002 regarding closed centres [10] . It is this royal decree which determines the functioning of the closed centres and which defines certain rights and obligations of the detainees.

Belgium has 6 closed centres, with a total capacity of 568. In 2007, 7,506 migrants were detained in these centres [11] . This figure is just below the annual average : around 8,000 foreigners are held each year in closed centres.

. INAD centre. This centre is located “on the border”, within the confines of the national airport. The majority of foreigners held there are people who do not possess the necessary documents to enter the territory or whose reasons for travelling are not ‘clear’ in the eyes of the border police. The Royal Decree of August 2nd 2002 does not apply to this centre, with the result that detainees are deprived of certain rights. NGOs, for example, are not permitted to visit the centre. The Council of State has highlighted the discrimination between detainees held in different closed centres due to the absence of regulation. As a result, a new royal decree is to be passed in the following weeks.
. Centre 127. This is also a centre “on the border”, in which migrants who have claimed asylum at the border and are to be deported are held. Foreigners arrested on the territory and awaiting their expulsion may also be detained here. As the first closed centre in Belgium, operational since 1988, it was constructed from prefabricated blocks and was originally intended to be temporary.
. Centre 127 (2), centres in Bruges, Vottem and Merksplas. In these centres, irregular migrants arrested on the territory and asylum seekers whose cases are being examined are held. The centre in Bruges is housed in a former prison, while the centre in Merksplas, founded in the 19th century, was originally intended to lock up vagabonds.

A new closed centre is being constructed near the airport. It is intended to replace the 127 centres and the INAD. Finally, the Ministry for Asylum and Immigration aims to construct a new closed centre with 160 places in order to detain “troublemakers and people suffering from mental health problems” [12] .

Length of detention

“After 5 months, the migrant must be set free” [13]. When it is a question of “safeguarding public order”, detention may last up to eight months.
The length of detention is potentially indefinite when a migrant is considered to have “resisted” his or her expulsion. The new decision of detention which he or she will receive upon return to the centre and the length of detention will be artificially returned to zero. But in reality, it is rare for migrants to remain in detention for longer than a year : the courts controlling detention end up liberating them.

Access to healthcare

Access to healthcare in Belgium’s closed centres is a widespread and recurrent issue. The problems are well-known : indiscriminate detention of sick and vulnerable people, lack of independence of social and psychological services in the closed centres, solitary confinement of migrants with mental health problems, doctors employed by the immigration service, filtering of detainees wishing to see a doctor, difficulty in contacting doctors outside the centres, difficulty in accessing medical records for detainees, etc.

Contact with the outside world

Contact with the outside world is difficult. Detainees may make free telephone calls to their lawyer. To telephone any other person, they must buy telephone cards, but cannot receive calls (except from their lawyer). Detainees may receive visits from family members with the exception of the INAD and 127 centres. According to the authorities, the location of these centres within the airport zone makes such visits impossible. In this aspect also, the Council of State has broken its agreement. The fact that these closed centres are situated within the airport compound does not exempt “the State from respecting the right to private and family life”. A new royal decree more favourable to detained migrants is to be passed in the near future.

Legal assistance

Legal assistance is provided for in law and notably by the Royal Decree on closed centres [14]. Free legal assistance must be given by pro deo lawyers. Although this right exists in theory, in practice numerous obstacles prevent detained migrants from accessing this assistance. Detainees are not informed of this right, lawyers are poorly trained or abuse their position, and certain procedures are impossible to carry out in the time limits given. Thus, some foreigners may be detained without any court having ruled on the legality of the decision to detain (this recourse is not automatic) and without ever having been able to seek legal advice. The problems relating to legal assistance in closed centres have been the subject of a report by NGOs visiting the centres : “Asserting your rights in closed centres” [15].

Access by NGOs

No legal or regulatory texts determine precisely which NGOs can access closed centres [16] . Permanent visiting rights are subject to the discretion of the minister of asylum and immigration. The administration may withdraw accreditation from a visiting NGO without any giving any justification other than ‘administrative reasons’. Currently, 9 associations regularly employ their visiting rights. They must give 24 hours notice of their visit.

The situation of minors

Since the December 2002 law instituting a system of guardianship for unaccompanied minors came into force [17] , migrant minors present on the territory are no longer detained in closed centres. The January 12th 2007 law on the reception of asylum seekers put an end to the detention of minors arriving at the border [18] , and they are now placed in observation and orientation centres until a ‘sustainable’ solution can be found. The only minors who are still detained upon arrival at the border are those whose age is disputed, and they may be detained for 3 days, renewable only once. In this type of case, age is determined by three tests whose reliability is questionable : the wrist bone test, X-ray of the collarbone, and tooth examination [19] .
The detention of families with children has been a major issue in the last few years. The number of minors detained with their family has risen considerably : 152 children detained in 2004, 501 in 2005 and 810 in 2006 [20] . The numerous civil society movements in response to this phenomenon have provoked a reaction by the political class. The minister of asylum and immigration promised to put in place an alternative solution to the detention of families with children, and took action in October 2008. Despite numerous doubts regarding the content of this project [21], there are now much fewer children held in closed centres. However, families with children arrested at the border and without authorisation to enter the territory are still detained.

Readmission agreements

The lists below are incomplete due to the difficulties experienced in data collection.

Benelux has signed readmission agreements with the following countries : Bulgaria (2002), Croatia (2002), Estonia (2004), Hungary (2003), Lithuania (2002), Latvia (2002), Romania, Slovakia (2004) and Slovenia (2004).

The agreements signed by Benelux may be consulted on the “Belgian Monitor” (official newspaper). However, the agreements signed by Belgium alone are not available, although we know that “administrative agreements following missions by immigration officials” exist. These agreements exist mainly with Albania, Congo, China, Russia, Nepal, Niger, Poland, Guinea and Togo. Some of these agreements authorise readmission on the basis of European ‘laissez passers’, which allow the person to be deported to be identified by the Immigration Office and not by representatives of the country of origin [22] . Besides these readmission agreements, Belgium has signed “memorandums of understanding”, known as “MOUs” or “draft agreements” which lay out the conditions for identification and readmission with numerous countries. According to the minister of asylum and immigration, between 2006 and 2008, readmission and visa agreements were signed with : Russia, Ukraine, Moldova, Bosnia Herzegovina, Serbia, Montenegro and Macedonia [23] . Draft agreements were concluded with Vietnam, Guinea and Ecuador in 2008. In 2009, Belgium will attempt to conclude the same kind of agreement with Iran, Iraq and Nigeria.

Externalisation

Belgium sends ‘liaison agents’, or ‘immigration civil servants’ to countries considered to be ‘susceptible’ in order to encourage them to sign readmission agreements and to “limit migration flows from the countries of origin” [24]. The ‘proactive’ approach, draft agreements concluded with carriers and ‘preventive measures’ are some of the priorities of the new minister of asylum and immigration policy [25] . An agreement on identification and return was concluded with the Democratic Republic of Congo which also put in place “measures to fight illegal immigration from the Congo”. These measures include : training of Congolese immigration officials by Belgium, border control missions by Belgian federal police at Kinshasa airport and deterrent missions. The latter, entitled “Vanda Na Maboka” (settle at home) has provoked indignation. A Congolese journalist managed to enter a closed centre in Belgium in order to show the harsh reality of immigration in Belgium, and did not hesitate in filming asylum seekers being processed [26].

Bibliography

June 2009 : “Twelve months in closed centres, twelve lives turned upside down”, CIRE

2009 : “The little black book of the closed centres”, CRER Belgium (Organisation against round-ups, expulsions and for regulation)
November 19th 2008 : “Asserting your rights in closed centres : an obstacle course”. Report on legal assistance for detained migrants by NGOs visiting closed centres.

October 10th 2007 : Note by NGOs visiting closed centres for the attention of a delegation of European MPs.

May 23rd 2007 : MSF denounces the human cost of closed centres [27]. October 2006 : “Closed centres for foreigners : the current state of affairs”

June 2006 : Observations by NGOs on government bills relating to asylum and immigration.

May 2003 : The arbitrary nature of closed centres. Report by OCIV-CIRE.

Cédric Vallet (CIRE) – April 6th 2009

Translated by Eleanor Staniforth - 2011