Belgium has 13 external border posts: 6 airports, 6 seaports, and one international train station (Eurostar terminal at Brussels South station). Belgium has no border guard authority as such; the border control is carried out by police officers from the Federal Police, in close cooperation with the Border Control section at the AO, as opposed to the control on the territory, being primarily within the competence of the Local Police.
A person without the required travel documents will be refused entry to the Schengen territory at a border post and will be notified of a decision of refusal of entry to the territory and “refoulement” by the AO (so-called “Annex 11ter”).1 Such persons may submit an asylum application to the border police, which will carry out a first interrogation and send the report to the Border Control section of the AO.2 The “decision of refoulement” is suspended during the examination of the asylum application but no right to enter the Belgian territory will be granted. This is also the case during the term to appeal and the whole appeal procedure itself.3
The asylum application will be examined while the applicant is kept in detention in a closed centre located at the border. Such detention may last for a period of a maximum of 2 months, which may be extended to a total maximum of 5 months, only if a final and executable decision on the asylum application has already been made within the first 2 months and if necessary steps to remove the asylum seeker from the territory are being taken by the AO.4
Families with children are placed in so-called open housing units, which are more adapted to their specific needs, but which are also legally still considered to be border detention centres.5
Most of the other asylum seekers who apply for asylum at the border are held in a specific detention centre called the “Caricole”, situated near the airport, but can also be held in a closed centre located on the territory, while in both cases legally not being considered to have formally entered the country yet.6
Asylum seekers who apply for asylum at the border are systematically detained, without preliminary assessment of their personal circumstances. No exception is made for asylum seekers of certain nationalities or asylum seekers with a vulnerable profile other than being a child or a family with children.
When the asylum application is rejected, the asylum seeker has not yet entered the territory according to the law and may thus be removed from Belgium under the responsibility of the carrier.7 This brings with it a potential protection gap since the person concerned should lodge an appeal against the “decision of refoulement” that was given to him or her – when he or she applied for asylum upon arrival at the border – long before knowing if, where and under which circumstances this would be executed. When the carrier actually decides to return the person to a transit country, the conformity of that particular executing measure and those particular circumstances with Article 3 ECHR will not have been subjected to any in-merit examination.8 This was one of the aspects of concern for the ECtHR in the Singh case when it ruled that Belgium lacked an effective remedy in such situations, in violation of Article 13 ECHR (see Border Procedure: Appeal below).
The first instance asylum procedure for persons applying for asylum at the border detained in a closed centre or open housing unit is the same as the regular procedure, except for the time-limit within which the CGRS must take the decision. The CGRS has to decide on the merits of the application within 15 days after having been notified by the AO that Belgium is responsible for examining the claim.9 In most cases this time-frame is respected, but there are no consequences attached to not respecting it since it is considered to be a so-called term of 'internal order', as long as it does not exceed the legal detention period. If no final and executable decision on the asylum application has been made within the first 2 months of detention, the asylum seeker is released and allowed to enter the territory. The decision of refusal of entry to the territory and “refoulement” that was notified at the border when applying for asylum, is automatically (ipso iure) replaced by an order to leave the territory, that is not executable as long as the CGRS has not taken a decision.10
In 2016, 346 asylum applications were made at the border.11
As is the case in the regular procedure, every asylum seeker receives a personal interview by a protection officer of the CGRS, after the AO has conducted a short interview for the purpose of the registration of the asylum application and after the asylum seeker has filled in the CGRS questionnaire.
However, as the border procedure is an accelerated procedure, the interview by the CGRS takes place much faster after their arrival and in the closed centre. This implies that there is little time to prepare and substantiate the asylum application. Most asylum seekers arrive at the border without the necessary documents providing material evidence substantiating their asylum application. Contacts with the outside world from within the closed centre are difficult in the short period of time between the arrival and the personal interview, which constitutes an extra obstacle for obtaining documents and evidence.
Vulnerable asylum seekers also face specific difficulties related to this accelerated asylum procedure. Since no vulnerability assessment takes place before being detained, their vulnerability is not always known to the asylum authorities and as a result may not be taken into account when conducting the interview, assessing the protection needs and taking a decision.
The full judicial review appeal, as well as the annulment and suspension appeals at the border, are the same as in the regular procedure, except for the much shorter time limits that need to be respected. The time period within which any appeal to the CALL must be lodged while in border detention (including for families in an open housing unit) is only 15 calendar days, instead of 30 calendar days in the regular procedure.12 The case subsequently has to be handled by the CALL in accordance with different procedural steps from the appeal in the regular procedure, all within very short time limits, meaning that a final decision on the appeal must be taken by the CALL within a maximum of 14 working days in total.13 Asylum seekers can attend the hearing.
In practice, asylum seekers do not face obstacles to lodging a full judicial review appeal against an asylum decision of the CGRS in the border procedure as such, except for the pressing time-frame in which to contact a lawyer, prepare and elaborate an appeal.
However, asylum seekers do face serious obstacles in appealing against decisions of refoulement (refusal of entry) delivered at the moment of arrival at the border. Since the maximum time-limit for lodging the appeal is also limited to 15 calendar days without this period being suspended during the examination of the asylum procedure, this time-limit will have passed well before a final decision has been taken on the asylum application. As a consequence, it is not possible anymore for an asylum seeker to raise certain risks of violations of Article 3 ECHR that have not yet been examined during the asylum procedure.
For the removal of rejected asylum seekers at the border, the AO applies the Chicago Convention, which implies that rejected asylum seekers have to be returned by the airline company that brought them to Belgium, to the place from where their journey to Belgium commenced or to any other country where they will be admitted entry.14 In many cases the point of departure (and return) is not the country of origin, and the CGRS does not examine potential persecution or serious harm risks in other countries than the applicant’s country of origin. The AO on its turn does not consider itself to be under an obligation to carry out this examination either, as it considers this to be the task of the CGRS. Accordingly, not all issues rising under Article 3 ECHR in the country where the person is (forcibly) returned will be scrutinised. This is in particular the case where the country of return is a country other than that of nationality, or also outside the scope of application of the Chicago Convention, where the CGRS has doubts over the person’s nationality or recent stay in that country, making it impossible in their opinion to pronounce itself on the risk of being treated inhumanely there.
In border procedures, asylum seekers are entitled to free legal aid. In principle, the same system as described under the regular procedure applies for the appointment of a “pro-Deo” lawyer. However, most bureaus of legal assistance appoint junior trainee lawyers for these types of cases, which means that highly technical types of cases are handled by lawyers who do not have adequate experience. The contact between asylum seekers and their assigned lawyer is usually very complicated. Often no lawyer is present at the personal interview because asylum seekers cannot get in touch with their lawyer before the interview takes place, and lawyers tend not to visit their client before the interview to prepare it. When a negative first instance decision is taken by the CGRS, it is not always easy to contact the lawyer over the phone or in person to discuss the reasons given in the decision. Often the lawyer decides that there are no arguments/grounds to lodge an appeal with the CALL and advises the asylum seeker not to lodge an appeal without explaining the reasons why. Some bureaus of legal assistance have or intend to create pools and lists of specialised alien law lawyers to be exclusively assigned in this type of cases, but the necessary control and training to effectively guarantee quality legal assistance seems to be lacking.15
- 1. Article 72 Royal Decree 1981; Article 52/3(2) Aliens Act. Remarkably, in French the word “refoulement” is used (“terugdrijving” in Dutch), though it does not concern a violation of the non-refoulement principle, since the persons concerned have been allowed to introduce an asylum application and have it examined.
- 2. Articles 50ter and 50 Aliens Act.
- 3. Article 39/70 Aliens Act.
- 4. Article 74/5 Aliens Act.
- 5. Article 74/9 Aliens Act.
- 6. For jurisprudence on the fictitious extraterritoriality at the borders, see CBAR-BCHV, Grens, Asiel, Detentie – Belgische wetgeving, Europese en internationale normen, January 2012, available in Dutch at: http://bit.ly/1wNTXfc, 13-15.
- 7. Chicago Convention of 7 December 1944 on International Civil Aviation. See on this issue CBAR-BCHV, Het Verdrag van Chicago. Toepassing op asielzoekers aan de grens (The Chicago Convention. Applicability for asylum seekers at the border), June 2013, available in Dutch at: http://bit.ly/1ycTntE.
- 8. And it will be too late to appeal against it in an effective way, as also the ECtHR has ruled in Singh v Belgium.
- 9. Article 52/2 Aliens Act.
- 10. Article 74/5(5) Aliens Act. This legal practice of giving someone access to the territory and at the same time delivering him or her an order to leave is an anachronistic application of the two phased asylum procedure as it existed before the legislative change in 2007, when it had an admissibility and an in-merit phase. The admissibility decision on the asylum application from a person detained at the border was also a decision on the right to access the territory, so the person was released. In some situations an asylum seeker was released before that decision on the admissibility was taken (Article 74/5(4)), in which case Article 74/5(5) was applied, as there was not yet a decision on the right to access the territory either. Since that admissibility phase has been abolished, Article 74/5(5) appears to have lost its underlying principle. Nevertheless, the CALL accepts the application of the legal provision, though does not qualify it as a binding obligation for the AO to do so anymore: CALL, General Assembly Judgments nos 66.328-66.332, 8 September 2011). See on this issue CBAR-BCHV, Frontière-Asile-Détention. Législation belge, normes européennes et internationales (Border-Asylum-Detention. Belgian legislation, European and international standards), January 2012, available in French and Dutch at: http://bit.ly/1dq3Ywv. In practice, a staff member of the AO puts a handwritten formula on the Annex 11ter, referring to the legal basis that assimilates it with a normal order to leave the territory within 7 days.
- 11. Information provided by the AO: CBAR-BCHV, Contact meeting, 20 October 2015, available at: http://bit.ly/1OTAckJ, para 3.
- 12. Article 39/57 Aliens Act.
- 13. Article 39/77 Aliens Act.
- 14. Article 74/4 Aliens Act.
- 15. In some specific cases the system of exclusively appointing listed lawyers to assist asylum seekers at the border, seems to have attracted some lawyers for purely financial reasons rather than out of expertise or even interest in the subject matter or their client’s case.