Families with minor children who claim asylum at the border are explicitly excluded from detention in a closed centre and are placed in facilities adapted to the needs of such families.1 Following the ECtHR’s Muskhadzhiyeva judgment,2 and before Kanagaratnam,3 the then Secretary of State decided that from 1 October 2009 onwards families with children, arriving at the border and not removable within 48 hours after arrival, should be accommodated in a family unit.
The detention of unaccompanied children is also explicitly prohibited by law.4 Since the entry into force of the Reception Act, unaccompanied children are in principle no longer placed in detention centres. When they arrive at the border, they are assigned to a so-called “Observation and Orientation Centre” (OOC) for unaccompanied children.5 This only applies to those unaccompanied children with regard to whom no doubts were raised about the fact that they are below 18 years of age and are identified as such by the Guardianship service (see Asylum Procedure: Identification). Also, this OOC is legally considered to be a detention centre at the border, which means that the unaccompanied child is not considered to have formally entered the territory yet.6 Within 15 calendar days, the AO has to find a durable solution for the child, which may include return after an asylum application has been refused. Otherwise access to the territory has to be formally granted.
No other vulnerable categories of asylum seekers are excluded from detention by law. Besides the consideration of the minority of age, no other vulnerability assessment is made whatsoever before deciding on the detention of asylum seekers, especially at the border.
In his policy note presented in late 2016, the Secretary of State announces the establishment of closed centres for families close to the 127-Bis Repatriation Centre near the Brussels National Airport, with a view to carrying out returns. In a letter addressed to the Secretary of State for Migration and Asylum of Belgium, Commissioner for Human Rights Muižnieks of the Council of Europe warns against resuming the practice of detaining migrant families with children. The Commissioner for Human Rights states that Immigration detention, even as a measure of last resort and for a short period of time, should never apply to children because it is a disproportionate measure which may have serious detrimental effects on them.7
- 1. Article 74/9 Aliens Act. Article 74/9(3)(4) still allows for a limited detention of the family in case they do not respect the conditions they accepted in a mutual agreement with the AO, but this seems not to be applied in practice at all.
- 2. ECtHR, Muskhadzhiyeva and Others v Belgium, Application No 41442/07, Judgment of 19 January 2010. The Court found a violation Articles 3 and 5(1) ECHR due to the administrative detention for one month of a Chechen woman and her four small children who had applied for asylum in Belgium while waiting to be expelled to Poland, the country through which they had travelled to Belgium.
- 3. ECtHR, Kanagaratnam and Others v Belgium, Application No 15297/09, Judgment of 13 December 2011. The Court found a violation of Articles 3 and 5(1) ECHR due to the detention of a Sri Lankan asylum seeking (who was eventually recognised as a refugee) mother with three underage children for more than three months.
- 4. Article 74/19 Aliens Act.
- 5. Article 40 Reception Act.
- 6. On the technicality of this legal fiction, see inter alia Council of State, Judgment No 102.722, 21 January 2002 and Judgment No 57.831, 25 January 1996.
- 7. Council of Europe, ‘Belgium urged not to resume detention of migrant children and to expand alternatives to immigration detention for families with children’, 19 December 2016, available at: http://bit.ly/2i6v9iQ.