Criteria and restrictions to access reception conditions

Belgium

Author

Vluchtelingenwerk Vlaanderen

Right to shelter and assignment to a centre

According to the 2007 Reception Act, every asylum seeker has the right to material reception from the moment he or she has registered his or her asylum application, that allow him or her to lead a life in human dignity.1

There is no limit to this right connected to the nationality of the asylum seekers. Asylum seekers from safe countries of origin will have a reception place assigned to them, as will those who have a recognised refugee status in another EU country. EU citizens applying for asylum and their family members are entitled to reception as well, although in practice they are not accommodated by Fedasil anymore (see section on Differential Treatment of Specific Nationalities in Reception). So all these categories have the right to shelter at the start of the asylum procedure, even though they may have different kinds of asylum procedures and their right to shelter may be limited in time (see further “Ending of the right to reception”),

In theory, no material reception conditions, with the exception of medical care, are due to a person with sufficient financial resources to provide for his or her basic needs.2 Expenses made for material aid already delivered can also be recovered in such cases.3 The concept and means of calculating financial resources, as well as the part to be contributed, are determined in the 2011 Royal Decree on Material Assistance to Asylum Seekers. Nevertheless, no assessment of these financial resources or of the actual risk of destitution of the person concerned takes place already at the moment of the intake. Also, in practice, the withdrawal of the material aid is only rarely applied, since Fedasil does not have the capacity to control and have the expenses already made effectively reimbursed (see section on Reduction and Withdrawal of Reception Conditions).

 When the asylum seeker introduces his or her asylum application at the AO, he or she gets a proof of this registration (so-called “Annex 26”). This document has to be presented to Fedasil’s Dispatching desk, in the same office building as the AO, where the applicant will get a reception centre assigned as his or her mandatory place of registration (so-called “Code 207”).4  The applicant should go to the assigned centre immediately. An asylum seeker can, however, also choose not to accept the offered place in a reception centre and to stay at a private address, but in that case he or she will only be entitled to medical care and legal aid. The applicant can nonetheless always opt in again in the material aid, as long as his asylum procedure is pending.

The serious backlog of asylum application registrations that emerged in late summer 2015 when the AO refused to (or could not) register more than 250 a day, caused hundreds of people to sleep rough for days because they were not yet eligible for accommodation to be assigned by Fedasil.  At first a camp organised by civil society emerged in the park opposite the AO building as a response to this reception gap. Later the government created so called pre-reception accommodation at the AO premises organised by the Flemish Red Cross for up to 1,000 people by the beginning of October, to be buffer capacity.

Since the beginning of 2016, the asylum seeker is first pre-registered after which the applicant receives a convocation. First time applicants are subsequently sent to a transit or temporary reception centre until they are invited for registration and get a permanent reception structure assigned by Fedasil.5

 

The Reception Act provides the possibility for Fedasil to refuse reception to asylum seekers who lodge a second or further subsequent asylum application, until their asylum application is taken into consideration by the CGRS.6 This unless Fedasil is informed that they have a pending or granted request for a prolongation of the reception.7 Between the moment of the subsequent application and the decision of the CGRS to take the application in consideration the asylum seekers have the right to medical assistance from Fedasil and to free legal representation. Once the CGRS has taken the application into consideration the right to reception is reactivated. The asylum seeker should then present him-or herself to Dispatching to obtain a place.

When the asylum seeker has not obtained reception from Fedasil during the first stage and the CGRS decides to declare the subsequent asylum application inadmissible he or she will also have no right to reception during the appeal with the CALL.

According to the law, Fedasil has to take all elements of vulnerability into account when taking this kind of decision. Furthermore Fedasil is obliged to motivate this decision on an individual base. According to the Constitutional Court this decision is only legal in case of abuse of the asylum procedure, and so when the person applies for asylum only to extend the right to reception.8 In reality Fedasil refuses systematically to assign a reception place to subsequent applicants until their asylum application is taken into consideration by the CGRS. By law the CGRS has 8 days to decide whether the asylum application is taken into consideration. Often this takes longer (in some cases up until a few months).. Labour Tribunals have ordered Fedasil at multiple occasions to motivate such decisions individually taking into account all elements of the case.9 Regularly subsequent applicants obtain reception after going to these courts. The Federal Mediator has also drawn attention to this problem in his annual report of 2015.10

 

Right to reception: Dublin procedure

During the examination of the Dublin procedure by the AO, asylum seekers are entitled to a reception place. Previously, in case of an agreement with another Member State to take charge of or take back the asylum seeker, this right continues until the delay to execute a decision to transfer them to the responsible member state has elapsed, even if the transfer did not take place. Following judgments of the Brussels and Liege Labour Tribunals implementing the CJEU’s Cimade judgment, according to which the authorities are under an obligation to provide a reception place until the (forced or voluntary) Dublin transfer is actually carried out,11 Fedasil has adapted its instructions. However, it still limits the right to reception conditions to the period until the time-period for executing the order to leave the territory has elapsed (considering this to be the “actual transfer” the CJEU refers to), or until the travel documents are delivered if the asylum seeker confirms his or her willingness to collaborate with the transfer but cannot execute the decision yet for reasons beyond his or her own will.12 The Brussels Labour Court and the Antwerp Labour Tribunal have overruled these instructions again in individual cases, because they would make too strict an interpretation of the Cimade judgment, ordering Fedasil to provide shelter until the Belgian state effectively executes this transfer decision itself (unless it gives clear instructions as to when and where the asylum seeker has to present him or herself for this).13 From October 2015 on, asylum applicants under a pending Dublin transfer decision will be accommodated in an open return place and the return track procedure will apply, as described below.14

If eventually in such cases, after the maximum time period permitted by the Dublin Regulation to transfer the asylum seeker to the responsible Member State has passed, Belgium accepts its responsibility to examine the asylum application, no reception place will be assigned until the person has presented him or herself at the AO again and the AO has accepted to reactivate the first application (see section on Dublin). In a July 2015 judgment in the V.M. v Belgium case, the ECtHR found that Belgium had violated Article 3 ECHR because (back in 2011) it had not provided for adequate material reception conditions for a particularly vulnerable family (asylum seekers, children, disabled, Roma) during the (non-automatically suspensive) appeal procedure against an AO transfer decision under the Dublin Regulation.15

Asylum seekers who are sent back to Belgium following a Dublin procedure are often considered as subsequent applications. As a consequence they often only get shelter after their asylum application is taken into consideration by the CGRS. In the case where an asylum seeker has left Belgium before the first interview, he or she will have gotten a “technical refusal” in his or her first asylum procedure. When this asylum seeker is then sent back to Belgium following a Dublin procedure and lodges his asylum application again, the CGRA is legally obliged to take it in consideration.16 Nonetheless, these asylum seekers often are still considered as subsequent applicants and therefore are without shelter until this decision is officially taken.

 

“Return track” and assignment to an open return centre

The Law of 19 January 2012 brought about some modifications to the reception system, introducing the concept of a so-called “return track” for asylum seekers.17 This is a framework for individual counselling on return, set up by Fedasil and put into practice since September 2012 that promotes voluntary return to avoid forced returns. This return track procedure has been updated in October 2015 by new instructions from Fedasil.18

The return track starts with informal counselling, followed by a more formal phase. The informal phase consists of providing information on possibilities of voluntary return and starts from the moment the asylum application is being registered. Within 5 working days after a negative first instance decision on the asylum application by the CGRS, the asylum seeker is formally offered return accompaniment. When an appeal is lodged with the CALL the asylum seeker is again informed about his or her options for return. The return track ends with the transfer to an open return place in a federal reception centre, when:

(1) The period to introduce an appeal with the CALL has elapsed or a negative appeal decision is taken by the CALL: Asylum seekers in this situation can ask Fedasil for a derogation of this rule and thus to stay in their first reception centre in case of:

  • Families with children who are going to school, who receive a negative decision of the CALL between the beginning of April and the end of June;


  • Ex-minors who turn 18 between the beginning of April and the end of June and go to school


  • A medical problem which prevents the asylum seeker from moving to the open reception place or during the last 2 months of pregnancy until 2 months after giving birth;


  • A family reunification procedure with a Belgian child has been started up;


  • When the asylum procedure of a family member is still pending.

When these derogations are granted, the asylum seeker can stay in the first reception centre until the conditions for the derogation are no longer met. At the end of the derogation the asylum seeker can ask for a new designation at an open reception centre, or simply leave the old centre.

(2) The AO takes a negative decision on the basis of the Dublin Regulation: In this situation, derogations from the obligation to go to the open return centre are only possible in case of:

  • A medical problem which prevents the asylum seeker from moving to the open reception place or during the last 2 months of pregnancy until 2 months after giving birth; and


  • The asylum seeker has applied for a prolongation of the order to leave the territory at the AO.

When this derogation is granted, the asylum seeker can stay in the first reception centre. His or her return should be organised there, instead of in the open return centre.

Minors who receive a negative decision are not transferred to an open reception place until they are adult. Then they can apply for a place in an open reception centre.

 

End of the right to reception

The right to material reception ends when:19

  • A legal stay for more than three months is granted; or


  • An order to leave the territory is delivered and the delay on this order has expired, and there is no possibility left for introducing a suspensive appeal.

Non-suspensive appeals are appeals against:

  • A decision of the AO (like a Dublin decision or an order to leave the territory);


  • An inadmissibility decision of the CGRS with regard to asylum applications by EU nationals and nationals of EU accession candidate countries;


  • An inadmissibility decision of the CGRS with regard to asylum seekers who have already obtained refugee status in another EU Member State;


  • A decision of the CALL after a suspensive appeal.

During these appeals there is no right to shelter, unless:

  • The CALL suspends or annuls the decision of the AO or CGRA


  • The Council of State declares a cassation appeal against a decision of the CALL admissible

Therefore, in practice, the right to reception in the open return place ends when the order to leave the territory expires. In case of a negative Dublin decision this delay is mentioned on the 26-quater (see section on Dublin Procedure). In case of a negative decision after a suspensive appeal with the CALL, the AO does not deliver any new order to leave the territory, but just prolongs the time period to execute the order delivered after the CGRS decision by 10 days,20 so the right to material reception conditions in the open return centre will only be prolonged for this period.

Until the end of the delay of the order to leave the territory, every asylum seeker (whether he or she collaborates with voluntary return or not) is entitled to full material reception conditions. The order to leave the territory can be renewed for two extra periods of 10 days, only if the person collaborates on his or her return.21 When the period for voluntary return as determined in the order to leave the country elapses and there is no willingness to return voluntarily, the right to reception ends and the AO can start up the procedure to forcibly return the person, including by using administrative detention.

In case of a negative outcome of the asylum procedure and thus the end of the right to reception, there are some humanitarian and other circumstances in which a prolongation of the right to reception conditions can be applied for with Fedasil:

  • To end the school year (from the beginning of April until the end of June);
  • During the last 2 months of pregnancy until 2 months after giving birth;
  • When a family reunification procedure with a Belgian child has been started up;
  • When it is impossible for the person to return to their country of origin for reasons beyond their own will;
  • For  medical reasons, when an application for legal stay has been made on this ground at the AO; or
  • Whenever respect for  human dignity demands it.22

Fedasil has adopted internal instructions about these possibilities and how to end the accommodation in the reception structures in practice.23

In case of a positive outcome of the asylum procedure, and thus after a decision granting a protection status, or another legal stay (for example, a medical regularisation procedure – which has been started up parallel with an asylum procedure - with a positive outcome and thus a legal stay of more than 3 months), the person concerned can stay for a maximum of 2 more months in the reception place. These 2 months should allow the person to look for another place to live and to transit to financial help of the PCSW if necessary.  Persons staying in collective structures at the moment of recognition (or other legal stay) will be offered the choice between moving to an individual reception structure for 2 months or leave the collective structure within 10 working days. In the last case they will receive food cheques during one month. The delay of two months can be extended. In general a prolongation of one month is common, after that the request for further prolongation should be very well motivated. Fedasil has adopted internal instructions about this.24

  • 1. Article 3 Reception Act.
  • 2. Article 35/2 Reception Act.
  • 3. Article 35/1 Reception Act.
  • 4. Articles 9-10 Reception Act.
  • 5. De Redactie, ‘Procedure registratie asielzoekers gewijzigd “als extra veiligheidscheck”’, 10 March 2016, available at: http://bit.ly/2jH67qX.
  • 6. Article 4 Reception Act.
  • 7. Fedasil, Instructions on the right to material aid in case of subsequent asylum applications, 6 March 2015, available in Dutch at: http://bit.ly/1RrW7gl.
  • 8. Constitutional Court, Judgment No 95/2014, 30 June 2014.
  • 9. Labour Tribunal, Brussels, Judgment of 17 February 2015, available in French at: http://bit.ly/1Q3cOBn; Labour Tribunal, Brussels, Judgment of 14 November 2016, Case No 16/1384/A; Labour Tribunal, Brugge, Case No 16/8K, Judgment of 11 October 2016.
  • 10. Federal Mediator, Annual report 2015, available at: http://bit.ly/2jAm6f7.
  • 11. CJEU, Case C-179/11, Cimade & Gisti v Ministre de l'Intérieur, Judgment of 27 September 2012; Labour Court, Brussels, Judgment of 24 January 2013.
  • 12. Fedasil, Instructions on the termination and the prolongation of the material reception conditions, 15 October 2013, available in Dutch at: http://bit.ly/1Km961S. These internal instructions replaced the Instructions of 13 July 2012, before they were eventually quashed by the Council of State, Judgment No 225.673, 3 December 2013.
  • 13. Labour Court, Brussels, Judgment of 4 December 2013; Labour Tribunal, Antwerp, Judgment of 6 March 2014, available in Dutch at: http://bit.ly/1FGadUL.
  • 14. Fedasil, Instruction on the change of place of mandatory registration of asylum seekers having received a refusal decision following a Dublin take charge, 20 October 2015, available in Dutch at: http://bit.ly/1MuInwV. This instruction replaces point 2.2.4. of the Instructions of 15 October 2013.
  • 15. ECtHR, V.M. and others v. Belgium, Application No 60125/11, Judgment of 7 July 2015 (referred to the Grand Chamber), available at: http://bit.ly/1MYGPvr.
  • 16. Art. 57/6/2 Aliens Act
  • 17. Article 6/1 Reception Act.
  • 18. Fedasil, Instruction concerning the return track and the assignment to an open return place, 20 October 2015, available in Dutch at: http://bit.ly/1Nof30n, and Instruction concerning the modification of the reception place of asylum seekers who have received a negative decision on the basis of the Dublin Regulation, 20 October 2015.
  • 19. Article 6 Reception Act.
  • 20. Law of 8 May 2013.
  • 21. Article 6/1 Reception Act and Article 52/3 Aliens Act.
  • 22. Articles 7 Reception Act.
  • 23. Fedasil, Instructions on the termination and the prolongation of the material reception conditions, 15 October 2013.
  • 24. Fedasil, Instructions on the transition from material reception to financial help: measures for residents of collective centres and the accompaniment in transition in the individual structures, 20 July 2016.

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