Regular procedure

Belgium

Author

Vluchtelingenwerk Vlaanderen

General (scope, time limits)

The asylum applications for which Belgium is responsible according to the Dublin Regulation are transferred to the office of the CGRS to be examined on their merits. The CGRS, which is an independent administrative authority, is exclusively specialised in asylum decision-making. In a single procedure, the CGRS first examines whether the applicant fulfils the eligibility criteria for refugee status. If the applicant does not meet these criteria the CGRS will automatically examine whether the applicant is eligible for subsidiary protection.1

The CGRS has the competence to:

  • Grant or refuse refugee status or subsidiary protection status;


  • Decide on the admissibility of asylum applications of EU citizens, persons from a safe country of origin or persons already having obtained refugee status in an EU Member State that is still effective, and of subsequent applications;


  • Apply cessation and exclusion clauses or to revoke refugee or subsidiary protection status (including on instance of the Minister);


  • Confirm or refuse refugee status of a refugee recognised in another country;


  • Reject asylum applications for technical reasons;2 and 


  • Issue civil status certificates for recognised refugees.3

There is no provision in the law imposing an obligation on the CGRS to take a decision within a certain period of time in the regular procedure (this is different for accelerated procedures: see below).4

In the second half of 2015, an exceptionally high number of asylum applications were filed in Belgium. As a result, the CGRS was unable to process all cases in a short term.

By mid-March 2016, 17,569 cases were still pending at the CGRS. By December 2016, this number was reduced to 14,851 cases. The CGRS tries to reduce the waiting period as much as possible. To achieve this, the CGRS has recruited additional staff and taken special measures to increase the number of decisions. As a result, the CGRS has increased the number of decisions taken every month. The CGRS does its utmost to take as many decisions as possible while still seeing to the quality of each decision.

Before the sharp increase in the number of asylum applications, it took on average 3 to 6 months for the CGRS to process an asylum application. It is important to realise that this is no longer feasible. For many asylum seekers, the waiting period will now be longer.

 

Prioritised examination and fast-track processing

The CGRS treats the applications of Syrian asylum seekers with priority. For these applications the CGRS tries to organise interviews and decisions within a short and reasonable time frame, except for those files that require further investigation. Files may need further investigation when there are indications about dual nationality, elements that can lead to exclusion or elements related to national security or when there are indications the protection was already offered by another country.5

 

Personal interview

At least one personal interview by a protection officer at the CGRS is imposed by law.6 Generally, for every asylum application the CGRS conducts an interview with the asylum seeker, though the length and the substance of the questions can vary substantially, depending e.g. on the manifestly well-founded or unfounded nature of the claim, or the presence or absence of new elements presented in case of a subsequent application. The interview serves the CGRS to examine whether the asylum application is credible and qualifies for refugee status or subsidiary protection status. The lawyer and/or another person of confidence chosen by the asylum seeker can attend the interview.7 The CGRS has elaborated an interview charter as a Code of Conduct for the protection officers, which is available on its website.8

Asylum seekers can request the assistance of an interpreter when introducing their asylum application with the AO, in case their knowledge of Dutch or French is not sufficient.9 In that case, the examination of the application is assigned to one of the two “language roles” without the applicant having any say in it and generally according to their nationality; the different nationalities being distributed to one of the two “roles”. In general, there is always an interpreter present who speaks the mother tongue of the asylum seeker. Sometimes, if the person speaks a rare language or idiom, this can be problematic and then an interpreter in another language can be proposed. During and after the interview at the CGRS, the interpreter has to respect professional secrecy and act according to certain rules of deontology. A brochure on this Code of Conduct is also made available on the CGRS website.10 The quality of the interpreters being very variable, the correct translation of the declarations, as they are written down in the interview report, is sometimes a point of contention in the appeal procedures before the CALL, which in general does not take this element into consideration since it is impossible to prove that the interpreter deliberately or otherwise translated wrongly or had any interest in doing so. 

There is no video or audio recordings of the interview, but the detailed report has to faithfully include the questions asked to and declarations of the asylum seeker; the law demands a “faithful reflection” thereof,11 which is understood to be different from a verbatim transcript. The CGRS protection officer has to confront the asylum seeker with any contradiction in their declarations, but this is not systematically done. Additional remarks or supporting documents can be sent to the CGRS afterwards and will be taken into consideration.12 The asylum seeker may order a copy of the interview report, together with the complete asylum file.

Since June 2016 the CGRS started to conduct interviews through videoconference in some of the detention centres. This is the case for the detention centre of Merksplas where all persons who applied for asylum are interviewed through video conference. This interview is organised the same way as a regular interview, meaning that there is an interpreter present at the office of the CGRS and the lawyer can present in Merksplas to attend the interview. The CGRS will evaluate this practice and extend it to other detention facilities. The video’s itself are not kept on file, and the CGRS will use the detailed report following the interview as the basis.13 The asylum seeker and his lawyer can request for an interview in person when to can provide elements of vulnerability that would justify such a request.14

 

Appeal

A judicial appeal can be introduced before the CALL against all negative in-merit decisions of the CGRS within 30 days.15 This appeal has automatic suspensive effect.16

In those cases the CALL has a so-called “full judicial review” competence (en pleine jurisdiction) which allows it to reassess the facts and to take one of three possible decisions:

  • Confirm the negative decision of the CGRS;


  • Overturn it by granting refugee or subsidiary protection status; or


  • Annul the decision and refer the case back to the CGRS for further investigation.17

The CALL has no investigative powers of its own, meaning that it must take a decision on the basis of the existing case file. Therefore in case it considers important information to be lacking, it has to annul the decision and send the case back to the CGRS for further investigation.

The time-limits and suspensive effect of the appeal against in-merits decisions differs from Dublin decisions and admissibility decisions (see section on Dublin Procedure), as well as for detained applicants (see section on Accelerated Procedure).

All procedures before the CALL are formalistic and essentially written, thereby making the intervention of a lawyer necessary. All relevant elements have to be mentioned in the petition to the CALL.18  At the hearing, the parties and their lawyer can orally explain their arguments to the extent that they were mentioned in the petition.19 In the full jurisdiction appeals, however, the CALL is now also obliged to take into consideration every new element brought forward by any one of the parties with an additional written note before the end of the hearing.20 Depending on how the CALL assesses the prospects of such new elements leading to the recognition or granting of an international protection status, it can annul the decision and send it back to the CGRS for additional examination – unless the CGRS can submit a report about its additional examination to the CALL within 8 days – or leave the asylum seeker the opportunity to reply on the new element brought forward by the CGRS with a written note within 8 days. Failure to respond within that 8-day time-is a presumption of agreeing with the CGRS on this point.

Still, in its Singh v Belgium judgment of October 2012, the ECtHR also found a violation of the right to an effective remedy under Article 13 ECHR because the CALL did not respect the part of the shared burden of proof that lies with the asylum authorities, by refusing to reconsider some new documents concerning the applicants’ nationality and protection status in a third country, which were questioned in the preceding full jurisdiction procedure.21

For 2016 there were 4,830 full judicial review “asylum contentieux” appeals. There were 61 appeals against decisions of not taking into consideration application from safe countries of origin, 624 appeals against decisions of not taking into consideration subsequent applications, 128 accelerated appeals of subsequent applications in detention.  There were 939 annulment appeals against Dublin-decisions and 270 extreme urgency procedure in asylum procedures.

Generally speaking, lawyers and asylum seekers are quite critical about the limited use the CALL seems to make of its full jurisdiction, which is reflected in the low reform and annulment rates. It is also important to note that there is a big difference in jurisprudence between the more liberal Francophone and the stricter Dutch chambers of the CALL. On the other hand, it must be acknowledged that the quality of a lot of appeals submitted is often poor, especially if these are not introduced by one of the few specialised lawyers in the field. A 2011 Fundamental Rights Agency (FRA) study showed that asylum seekers in Belgium faced difficulties in finding a lawyer or had to change lawyers to lodge an appeal.  The FRA study revealed that at the hearing they either felt like spectators or were otherwise led hand-held through the process by lawyers who instructed them when to speak and what to say, with occasionally little explanation. In some cases, hearings where the fate of asylum seekers was going to be decided were perceived as disappointingly short.22

Onward appeal to the Council of State

A possibility of onward appeal against decisions of the CALL exists before the Council of State, the Belgian supreme administrative court.23 Appeals before the Council of State must be filed within 30 calendar days after the decision of the CALL has been notified and have no suspensive effect. They are so called “cassation appeals” that allow the Council of State only to verify whether the CALL respected the applicable legal provisions and substantial formal requirements and requirements under penalty of nullity.24 It cannot make its own assessment and decision on the facts of the case. Appeals before the Council of State are first channelled through some kind of admissibility filter, whereby the Council of State filters out, within 8 working days, those cassation appeals that have no chances of success or are only intended to prolong the procedure.25 If the decision under review is annulled (“quashed”), the case is sent back to the CALL for a new assessment of the initial appeal.

 

Legal Assistance

Article 23 of the Belgian Constitution determines that the right to a life in dignity implies for every person inter alia the right to legal assistance. The Aliens Act  guarantees free legal assistance by a lawyer to all asylum seekers, at every stage (first instance, appeal, cassation) of the procedure and in all types of procedures (regular, accelerated, admissibility, appeal in full jurisdiction, annulment and suspension), with the exception of the AO stage.26 The Reception Act also guarantees asylum seekers efficient access to the legal aid during the first and the second instance procedure, as envisaged by the Judicial Code.27

The asylum procedure itself is free of charge. As to the lawyer honorarium and costs, asylum seekers are legally entitled to free judicial assistance, but some prefer to pay anyhow.

There are two types of free legal assistance: first line assistance and second line assistance.28 The competence for the organisation of the first line assistance lies at the regional level.  

The so-called “first line assistance” is organised by local commissions for legal assistance, composed of lawyers representing the local bar association and the public centres for social welfare (PCSW). There, first legal advice is given by a lawyer or a person is referred to a more specialised instance, organisation or to “second line assistance”, completely free of charge, regardless of income or financial resources. The first line assistance is organized in each judicial district by the Commission for Legal Assistance. Besides these lawyers’ initiatives, there are also other public social organisations and NGOs providing this kind of first line legal assistance. 

“Second line assistance” is organised by the local bar association that exists in every judicial district.  Each bar association has a bureau for legal assistance that can appoint a lawyer for (entirely or partially) free second line assistance, the so-called “pro Deo lawyer”. In practice, this might limit the free choice of a lawyer to a certain extent, but in theory every lawyer can accept to assist someone “pro Deo” and ask the bureau to be appointed as such, upon the direct request of an asylum seeker. Quite a number of specialised lawyers do so frequently in asylum cases. Within this “second line assistance”, a lawyer is appointed to give substantial legal advice and to assist and represent the person in the asylum procedure.

The 2003 Royal Decree on Legal Aid determines the conditions under which one can benefit from this second line legal assistance free of charge. Different categories are defined, in general depending on the level of income or financial resources and, with regard to specific procedures, on the social group they belong to. For asylum seekers and persons in detention, among others, there is a rebuttable presumption of being without sufficient financial resources. With regard to children, unaccompanied or not, this presumption is conclusive. In theory, only asylum seekers who lack sufficient financial means should be entitled to free legal assistance, but due to the aforementioned presumption, in practice every asylum seeker will get a lawyer appointed to assist them in all the stages of the asylum procedure.

The law permits the bureau for legal assistance to apply a preliminary merits test before appointing a pro Deo lawyer in order to refuse those manifestly unfounded requests, which have no chance of success at all.29 However, this provision is only very rarely applied in practice. So, in practice, if a person entitled to legal aid asks for a lawyer free of charge to be appointed, the bureaus for legal assistance grant this quasi-automatically. However, there are reports of a more stringent appointment practice in some districts when the lawyers request to be appointed themselves after having been consulted by an asylum seeker, especially in case of subsequent asylum applications.30

Since September 2016 the second line assistance has changed significantly. The most important change entails the introduction of a ‘flat fee’. This means that legal aid is no longer entirely free. However, certain categories of people in need of legal aid are exempted for this requirement:

  • If you start proceedings to be recognised as a stateless person;


  • If you apply for asylum;


  • If you appeal a return decision or an entry ban


  • If you do not have any means of existence.

If these persons wish to start other proceedings they will be required to pay the flat fee.

Example: an asylum seeker requests the assistance of a “pro-Deo" lawyer to assist him with his asylum application. He is exempted from the flat fee for the appointment of the lawyer and during the appeals procedure (if needed). However if he wishes to receive free legal aid concerning a rent dispute, he will not automatically be exempted from the flat fee as an asylum seeker. The asylum seeker will have to prove first that he has no sufficient means.

The nomenclature that determines the number of points for each intervention and as such the remuneration for the lawyers, has been modified by Ministerial decree of 19 July 2016. In the previous version lawyers got a certain amount of points per intervention of action. Every point was worth 25 euros. Since 1 September 2016 every point equals one hour. The value per point has not yet been determined. This will only be done in 2018. The Ministerial Decree of 19 July 2016 lays down the nomenclature of the points per intervention.

Example: before the entry into force of a lawyer would receive 15 points for a procedure before the Commissioner-general for refugees and stateless persons. Since 1 September 2016 the lawyer receives a basis of 3 points plus 1 point per started hour of the interview he attended. For a first appeal in asylum cases a lawyer can receive a maximum of 11 points. For a second or subsequent asylum application the lawyer will no longer receive the basis points unless the CGRS takes into consideration the new application or when the lawyer can proof the examination of the new elements (as required in subsequent asylum applications) had taken up a considerable amount of time.

“Pro-Deo" Lawyers receive a fixed remuneration by the bureau for legal assistance, which are financed by the bar associations that receive a fixed annual subsidy “envelope” from the Ministry of Justice. In theory, costs can be re-claimed by the state if the asylum seeker would appear to have sufficient income after all, but this does not happen in practice. The 2016 Ministerial Decree on Second Line Assistance has determined a list of points granted per service rendered.31






Procedure

Points

Procedure at the CGRS

Basis of 3 points

Presence during the interview

+ 1 point per started hour

Appeal at CALL (full jurisdiction)

Basis of 5 points

Petition

+ 4 points

These developments certainly make the “pro-Deo” remuneration system less attractive for lawyers. The reform might have a significant impact on the quality of legal aid. Another obstacle for lawyers to engage in this area of legal work is the fact that they are only paid once a year for all the cases they have closed and reported to their bar association in the previous year. Closure of the case can only take place once all procedures are finished, which in reality is long after the actual interventions were undertaken by the lawyer.

Depending on the Bar asylum seekers might experience problems when wanting to change “pro-Deo” lawyer. Some Bars do not allow a second “pro-Deo” lawyer to take over the case from the initially assigned “pro-Deo” lawyer. Although this limits abuses by lawyers acting in bad faith to a certain degree, this measure has also resulted in asylum seekers being subject to the arbitrariness of bad quality lawyers and has prevented experienced lawyers from assisting some in need of specialised legal assistance.

  • 1. Article 49/3 Aliens Act.
  • 2. So-called “technical reasons” to refuse an asylum application under Article 52 Aliens Act are: (a) deliberately ‘withdrawing oneself’ from a border procedure; (b) not appearing on the date of the interview without giving good reasons within 15 days; (c) not delivering the information one is asked for within a month without good reasons; and (d) non-compliance with the obligation to report for at least 15 days.
  • 3. Articles 49(2), 49/2(4), 52, 52/4, 57/6, 57/6/1, 57/6/2 and 57/6/3 Aliens Act (the last two being new provisions since September 2013).
  • 4. Article 23/1 of the Royal Decree on CGRS Procedure mentions the possibility for the asylum seeker to ask for a justification if no decision has been made within 6 months after the asylum application was made.
  • 5. Information provided by the CGRS: Myria, Contact meeting, 21 September 2016, available at: http://bit.ly/2kxOqOG, para 17.
  • 6. Article 6 Royal Decree on CGRS Procedure.
  • 7. Article 13/1 Royal Decree on CGRS Procedure.
  • 8. CGRS, Interview Charter, available at: http://bit.ly/1FAxkyQ.
  • 9. Article 51/4 Aliens Act.
  • 10. CGRS, Deontology for translations and interpretations, available at: http://bit.ly/1ROmcHs.
  • 11. Article 17 Royal Decree on CGRS Procedure.
  • 12. Articles 16-17 and 20 Royal Decree on CGRS Procedure.
  • 13. Information provided by the CGRS: Myria, Contact meeting, 21 September 2016, available at: http://bit.ly/2kxOqOG, para 25.
  • 14. Information provided by the CGRS: Myria, Contact meeting, 19 October 2016, available at: http://bit.ly/2jH91M9, para 7.
  • 15. Article 39/57(1) Aliens Act.
  • 16. Article 39/70 Aliens Act.
  • 17. Article 39/2 Aliens Act.
  • 18. Article 39/69 Aliens Act.
  • 19. Article 39/60 Aliens Act.
  • 20. Article 39/76 Aliens Act, as amended by the Law of 8 May 2013. For a discussion of the pre-2013 provision, see CBAR-BCHV, Nieuwe gegevens voor de Raad voor Vreemdelingenbetwistingen in volle rechtsmacht – In lijn met het Europees recht? (New elements before the CALL in full jurisdiction – in line with European law?), June 2010, available in Dutch at: http://bit.ly/1KefqbF. The new provision is clearly a simplification of what “new elements” are to be taken into consideration by the CALL and a better protection of the rights of the defence. On the other hand, it also introduces an additional procedural phase with strict time-limits to the already formalistic CALL procedure.
  • 21. ECtHR, Singh and Others v Belgium, Application No 33210/11, 2 October 2012.
  • 22. FRA, Access to effective remedies: The asylum-seeker perspective, 2011, available at: http://bit.ly/1KegxrW, 27-34.
  • 23. Article 39/67 Aliens Act.
  • 24. Article 14(2) Acts on the Council of State.
  • 25. The law, somewhat obscurely, determines cassation appeals to be admissible only (1) if they invoke a violation of the law or a substantial formal requirement or such a requirement under penalty of nullity, in as far as the invoked argument is not clearly unfounded and the violation is such that it could lead to the cassation of the decision and might have influenced the decision; or (2) if it falls under the competence and jurisdiction of the Council of State, in as far as the invoked argument is not clearly unfounded or without subject and the examination of the appeal is considered to be indispensable to guarantee the unity of the jurisprudence (Article 20 Acts on the Council of State). In practice, the Council of State does not shed light on what exactly is to be understood under these conditions.
  • 26. Articles 39/56 and 90 Aliens Act.
  • 27. Article 33 Reception Act.
  • 28. Article 508/1-508/25 Judicial Code.
  • 29. Article 508/14 Judicial Code.
  • 30. E.g. the Dutch speaking Brussels Bar Association is much more stringent in appointing a lawyer upon his or her own request if another one had been appointed already before. This causes a lot of disputes between the bureau for legal assistance of that bar association and lawyers or bureaus for legal assistance of bar associations from other districts.
  • 31. For an overview of the full nomenclature, please consult the Ministerial Decree of 19 July 2016, available at: http://bit.ly/2jAdVzs.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti