Judicial review of the detention order



Vluchtelingenwerk Vlaanderen

When asylum seekers are detained, they are informed in writing of the detention decision, its reasons and the possibility to lodge appeal. Those reasons are mostly limited to very general considerations such as ‘having tried to enter the territory without the necessary documents (at the border)’, or ‘risk of absconding (in Dublin cases)’. Translation of the detention decision in the language of the asylum seeker is not provided for by law, though in some centres a social interpreter is arranged by the centre’s social assistant on demand by the detainee.  

National legislation does provide for judicial review of the lawfulness of detention. No habeas corpus writ is automatically brought before a judge when an asylum seeker is being detained, but he or she can lodge a request to be released with the Council Chamber of the Criminal Court every month.1 The Council Chamber has to decide within 5 working days, and if this time-limit is not respected, the asylum seeker has to be released from detention.2 An appeal can be lodged against the decision of the Council Chamber before the Indictment Chamber at the Court of Appeal (Chambre des mises en accusation | Kamer van Inbeschuldigingstelling) within 24 hours. Against this final decision, a purely judicial appeal can be introduced at the Court of Cassation. 

When the AO decides to prolong the detention for another month after the applicant has spent already 4 months in detention, an automatic review by the Council Chamber of the Criminal Court takes place.3

The judicial review of detention remains very restrictive in scope. Only the legality of the detention can be examined, not the appropriateness or proportionality of it. This means that only the accuracy of the factual motives of the detention decision can be scrutinised i.e. whether the reasons are based on manifest misinterpretations or factual errors or not. The logic behind this is that the competence to decide on the removal of the foreigner, and as such on the appropriate measures to execute such a decision, lays with the AO and the CALL, not with the criminal courts. However, an appeal against a “refoulement decision” issued when applying for asylum at the border by the CALL will only be done once the execution becomes imminent, which is only the case once the asylum application has been refused (see section on Border Procedure).

Of course the limits of the legality of a decision are almost arbitrary and the Court of Cassation itself is ambiguous about the interpretation of such legality in its own jurisprudence, by including assessments of conformity of detention with the Return Directive or the ECHR, following ECtHR’s ruling in Saadi v UK.4 The Council or Indictment Chambers have even sometimes considered the principle of proportionality itself to be a part of the legality of a decision, but in most cases they limit their review to the legal basis for the decision, without ever considering any of the provisions of the Reception Conditions Directive. The fact that the person detained is an asylum seeker is generally not taken into consideration as an argument to limit the use of detention, nor are even more specific elements of vulnerability.5 In 2012, Belgium partly transposed the Return Directive into domestic law by adding the condition that detention is only allowed when other less coercive measures would not be effective, specifying that this is the case when there is a risk for absconding or when the person circumvents or obstructs the preparation of the return or removal procedure.6 While these grounds also apply to asylum seekers under the Reception Conditions Directive, since the Aliens Act provision concerns only persons that stay irregularly on the territory, these restrictions are not applicable to asylum seekers and are as such not scrutinised by the court in case of border detention. It remains to be seen in how far the courts will be willing to directly apply the provisions from the Reception Conditions Directive, now the transposition period has expired since July 2015. Although in 2014 the Court of Cassation judged that the AO has the obligation to consider less coercive measures through an individual assessment (e.g. taking into account the asylum seekers family life),7 this jurisprudence has not been systematically applied by the lower courts.

The courts have not ordered the AO to respect the maximum detention period of one month in case no first instance decision has been taken, as provided for in Article 43(2) of the recast Asylum Procedures Directive, but not transposed into Belgian Law. The lack of objective reasons spelt out in Belgian law that can be considered indications of a risk of absconding from a Dublin transfer (as is demanded under the Dublin III Regulation) has not been taken into consideration in practice by the courts either. In some individual case however, the Indictment Chamber of Antwerp has ordered the liberation of asylum seekers held in detention with the only motivation that the Dublin provisions apply.8 This does however not indicate a generalised practice of the courts. 

The procedure before the courts is determined in the Law on the Provisional Custody that applies in criminal law proceedings.9 In practice, the time-limits set in the law are respected, unless an appeal at the Court of Cassation is introduced against a judgment ordering release by the Court of Appeal. Since this cassation appeal suspends the detention period and it is not commonly treated within a reasonable time period, the detention period can exceed the legal maximum and result in the asylum seeker remaining in detention for prolonged periods. This practice has repeatedly been found by the ECtHR to be a violation of Article 5(4) ECHR.10

  • 1. Article 71 Aliens Act.
  • 2. Article 72 Aliens Act.
  • 3. Article 74 Aliens Act.
  • 4. ECtHR, Saadi v the United Kingdom, Application No 13229/03, Judgment of 29 January 2008.
  • 5. See for examples of jurisprudence and more on this issue, BCHV-CBAR, Grens-Asiel-Detentie, Belgische wetgeving - Europese en internationale normen, January 2012.
  • 6. Articles 7 and 27 Aliens Act.
  • 7. Court of Cassation, Judgment N° P.14.1415.F/4 of 1 October 2014. For more recent case-law concerning detention (of asylum seekers and irregular migrants), see Myria, Migration in numbers and in rights 2015, Chapter 9, 168-170.
  • 8. Court of Appeal Antwerp, Indictment Chamber, Judgment No K/2060/2015 of 7 September 2015, not published.
  • 9. Law of 20 July 1990 concerning pre-trial detention, available in French at: http://bit.ly/1B626nE and Dutch at: http://bit.ly/1KpjZzR.
  • 10. ECtHR, Firoz Muneer v Belgium; MD v Belgium.

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