Author
The Immigration Office is the authority responsible for the registration of asylum applications and for establishing the country responsible for examining the application for international protection. The Commissary-General for Refugees and Stateless persons (CGRS) is responsible for the examination of the well-foundedness of the applications for international protection.
The registration process
The law foresees a three-stage registration process:
- The asylum seeker “makes” (présente) their application to the Immigration Office within 8 working days after arrival on the territory.[1] An application at the border is made with the Border Police Section of the Federal Police immediately when the person is apprehended at the border and asked about their motives for entering Belgium.[2] The application can also be made in prison with the prison director or in a closed centre with personnel of the Immigration Office. These authorities refer the application immediately to the Immigration Office. Other applicants (the large majority) make their application directly at the Immigration Office (previously at the arrival centre ‘Petit Château/Klein Kasteeltje’, since August 2022 at the building of the Immigration Office, Pachecolaan 44, 1000 Brussel – Cube). The asylum seeker receives a “certificate of presentation” (attestation de présentation/bewijs van aanmelding) as soon as the application is made.[3] Under the law, failure to apply for a residence permit after irregularly entering the country or to apply for international protection within the 8-day deadline constitutes a criterion for determining a “risk of absconding”.[4] It is not clear if or to what extent these provisions are currently being applied. The CGRS can also consider non-compliance with this deadline as one of the elements in assessing the credibility of the asylum claim.
- The Immigration Office registers the application within 3 working days of “notification”.[5] This can be prolonged up to 10 working days when a large number of asylum seekers arrive at the same time, rendering it difficult in practice to register applications within the 3 working days deadline.[6]
- The asylum seeker “lodges” (introduit) their application either immediately when it is made, or as soon as possible after the “notification” but no later than 30 days after the application has been made.[7] This period may exceptionally be prolonged by way of Royal Decree, which has not occurred so far. When the application is lodged, the asylum seeker receives a “proof of asylum application” certifying their status as a first-time applicant (“Annex 26”) or a subsequent applicant (“Annex 26 quinquies”). The Immigration Office informs the CGRS of the lodging of the application.[8]
In the context of the COVID-19 sanitary measures, the three-phase system was changed and applicants now immediately lodge their application at the registration centre when they make the application. They instantly receive the Annex 26. The aim is to avoid unnecessary movements of applicants between the different services and to respect the 3-day time limit of article 50(2) of the Aliens Act even if confinement is necessary. This system is currently still being applied. Consequently, asylum applications are now being registered and lodged on the same day.[9]
Limitations to the right to apply for asylum
On 22 November 2018 a maximum quota per day on the number of people who could make their asylum application was introduced. This measure was suspended by the Council of State on 20 December 2018.[10] In the course of 2019 and the beginning of 2020, some isolated incidents concerning access to the asylum procedure were reported.[11]
Due to the outbreak of the COVID-19 pandemic, the Immigration Office closed its doors to the public on 17 March 2020. On 3 April 2020 the Immigration Office re-opened its doors and, due to the sanitary measures imposed by the government, launched a new online registration system for persons who wanted to apply for international protection. Asylum seekers faced various obstacles in accessing the asylum procedure due to this online registration system.[12] The Brussels court of first instance, seized by several NGOs, condemned the Belgian state, stating that completing the online registration was equal to ‘the formal making of a request for international protection’ and should therefore give the immediate right to reception conditions. As a result, the Immigration Office suspended the online registration system and resumed the previous system of physical, spontaneous registrations on 3 November 2020.
In the context of the reception crisis that started mid-October 2021, access to the asylum procedure was significantly impacted throughout 2022. Single men were regularly not allowed to register their application and were in this case not always given an appointment to make their application on a later specific date[13] making it impossible to ensure the registration of their request within three days after their presentation at the Immigration Office. After the location for registration of applications for international protection moved from ‘Petit Château’ to the headquarters of the Immigration Office (‘Pacheco’) on 29 August 2022, access to the registration process improved but remained difficult on certain days due to the limited registration capacity at Pacheco. For a certain period in the second half of 2022, the delay for registering the applications was officially prolonged from 3 to 10 working days, in application of article 50 §2 Aliens Act. The registration capacity depends each day on the available personnel, the number of applicants and their profiles and can thus not be predicted. Priority is always given to minors, families and vulnerable people. Single men who cannot be registered on the day they present themselves, are now given a paper with an invitation to present themselves at another specific moment within 3 working days. This paper is not individualised and is thus not considered a proof of making an asylum application by any other Belgian government institution, such as Fedasil (the federal agency responsible for the reception of asylum seekers). Since Fedasil requires an annexe 26 or other proof of registering an asylum application before allowing access to the reception network, persons who receive an appointment to come back on a later moment, do not have access to reception during that waiting time. This practice is not in conformity with the case law of the Court of Justice of the European Union, which states that a person needs to be considered an applicant for international protection as soon as they present this request to the relevant authorities; as of this moment, the person needs to be granted the rights to which an asylum seeker is entitled, such as the right to reception.[14] This has been confirmed by the Brussels Court of first instance in a judgment of 29 June 2023, in which the Belgian State was condemned for not respecting the right to access the asylum procedure:
(translation from French) “While the Court can understand that it is not possible to register every application for international protection on the same day as it is made, which is not required by the applicable provisions nor claimed by the applicants, it is inadmissible that some people were obliged to sleep outside the building for several days in a row in the hope that the next day they would be able to enter the building so that a certificate of presentation could be issued to them in accordance with Article 50 §2 of the Law of 15 December 1980. (…) Indeed, as long as the person concerned has not been issued with a document certifying that he has presented himself, not only will he not be able to claim material aid, but the following delays, set by the Directive and the Law of 15 December 1980, will not begin to run: * the 3 (or 10) day time limit within which the responsible authority must register the application; * the time limit for submitting the application, which then determines the start of the time limit within which the responsible authority must rule on the application. (…) The Belgian State’s assertion that the applications were always registered within 3 (or 10) days of their submission, assuming it to be correct, is, in this respect, irrelevant, since it is established, on the basis of the foregoing, that, it has, unjustifiably, delayed the moment at which the person is finally offered the opportunity to submit his application for international protection (even though this stage does not require the completion of any particular administrative formality) and, consequently, the running of all subsequent legal deadlines.”[15]
Even after the judgement of 29 June 2023, access to the asylum procedure remained problematic on certain days. In 2023, there were at least 8 days on which not all applicants were able to register on the day of presentation at the registration centre. In 2024, up to the time of writing, there were also several days on which single men were not able to register on the day they came to make their application. On 6 May 2024, around 70 persons who came in family context were not able to enter the registration centre; they received an appointment to come back for registration 2 days later. The personnel of the Immigration Office inquired whether the families had a place to stay to cover these two days; persons without a place were allowed to enter, persons indicating to have a solution, were invited to come back later.[16]
Procedure after registration
The international protection department of the Immigration Office is responsible for:
- Receiving the asylum application;
- Registering the asylum seeker in the so-called “waiting register” (wachtregister/registre d’attente), a provisional population register for foreign nationals (this occurs at the stage of the lodging phase);
- Taking fingerprints and a photograph;
- Conducting the Dublin procedure.
After having applied for asylum, the applicant is invited at the Immigration Office on a later date for a short interview to establish their identity, nationality and travel route. If there are indications that another country is responsible under the Dublin Regulation, the applicant is interviewed about the reasons for leaving, and what motivated them to move to Belgium. Since the law does not provide for the presence of a lawyer during interviews at the Immigration Office, lawyers cannot be present during this ‘Dublin interview’.
If Belgium is the responsible country under the Dublin Regulation, the Immigration Office and the asylum seeker, with the help of an interpreter, fill in a questionnaire for the CGRS about the reasons why they fled their country of origin, or, in case of a subsequent asylum application, which new elements are being submitted. Afterwards, the file, including this questionnaire, is sent to the CGRS for further examination and a decision. [17] The asylum section of the Immigration Office is furthermore responsible for the follow-up of the asylum seeker’s administrative residence status throughout the procedure as well as the follow-up of the final decision on the asylum application. In case of a negative decision, the Immigration Office will generally issue an order to leave the territory.[18] In case the applicant received a positive decision (granting of refugee status or subsidiary protection status), they need to present an attestation issued by the CGRS to their local commune which will register them in the register for aliens and issue a temporary residence card (‘A-card’, valid 5 years for persons with refugee status and 1 year, prolongable with 2 times 2 years for beneficiaries of temporary protection). For the transposition of this temporary residence permit to a ‘stay for an unlimited period’ after 5 years, the commune needs to ask a prior instruction from the Immigration Office.[19]
In 2022, there have been significant delays in the asylum procedure at the stage of the Immigration Office, due to a high influx of cases and understaffing issues at the Immigration Office. Even though the lodging takes place no later than 30 days after the application has been made following legal standards, the first interview was sometimes conducted more than several months later in certain cases.[20] Currently, waiting times significantly decreased, as did the backlog of cases pending at the international protection department of the Immigration Office (12,531 pending applications in February 2023 compared to 6,991 in February 2024)[21].
[1] Article 50(1) Aliens Act.
[2] Ibid.
[3] Article 50(2) Aliens Act.
[4] Articles 1(11) and 1(2)(1) Aliens Act.
[5] Article 50(2) Aliens Act.
[6] Ibid.
[7] Article 50(3) Aliens Act.
[8] Ibid.
[9] Myria, Contact meeting, 16 September 2020, available in French at: https://bit.ly/3sE592s.
[10] Council of State, Decision No 243.306, 20 December 2018, available in Dutch at: https://bit.ly/2WquTQK. For further information, see the previous AIDA report Belgium 2018 update, p. 15 and 22, https://bit.ly/3SAFd64.
[11] For further information, see previous AIDA reports, such as AIDA Belgium 2018 update, p. 15 and 22, https://bit.ly/3SAFd64.
[12] See Vrt Nws, Vrt Nws, Asylum seekers wait on the streets for weeks before being able to register: “Barely 1 in 3 gets the chance”, 8 May 2020, available in Dutch at: http://bit.ly/3t38o3D.
[13] Myria, Contact meeting September 2022: Information provided by the Immigration Office in French (p. 9): « Comme expliqué précédemment, la capacité d’enregistrement ne peut être représentée par un chiffre concret. La capacité d’enregistrement de l’OE dépend d’une part du nombre de personnes qui se présentent, mais aussi du profil des personnes qui se présentent. Par exemple, l’enregistrement d’un MENA prendra beaucoup plus de temps que, par exemple, l’enregistrement d’un homme isolé. Il est donc impossible de représenter cette capacité d’enregistrement par un chiffre précis. En fait, la capacité est évaluée directement sur place et ajustée en fonction de la capacité dans la salle d’attente à ce moment-là.“, full report available at https://bit.ly/3T1jvZ0; Myria, Contact meeting october 2022: Information provided by the Immigration Office in French (p. 7) : « Non, il n’y a pas eu de changement depuis la réunion de contact de septembre. Il est vrai qu’en cas d’afflux très important, tout le monde ne peut pas avoir accès au bâtiment le même jour, et tout le monde ne peut pas non plus recevoir une invitation à se représenter à une date ultérieure. En effet, le OE n’a aucune idée du nombre de familles/personnes vulnérables qui se présenteront le lendemain, ce qui rend difficile l’estimation du nombre d’hommes isolés qui pourront être enregistrés le ou les jours ouvrables suivants. De cette façon, l’OE essaie de pouvoir donner la priorité aux familles et aux personnes vulnérables à tout moment. Toutefois, l’objectif reste toujours d’enregistrer toutes les personnes qui se sont proposées dans un délai d’une semaine au plus tard le vendredi de cette même semaine ; ce qui réussit généralement. La priorité absolue est toujours accordée aux MENA, aux familles et aux personnes vulnérables. », full report available via https://bit.ly/3ZBF6d7.
[14] EU Court of Justice, Commission vs. Hungary, 17 December 2020, §97, available in English at https://tinyurl.com/ycbmu28d; EU Court of Justice, C‑36/20 PPU, 25 June 2020, available in English at https://tinyurl.com/3fcrj4sw, §91-94: “Lastly, it is important to note again that recital 27 of that directive states that third-country nationals and stateless persons who have expressed a wish to apply for international protection are applicants for international protection, and that they should therefore comply with the obligations, and benefit from the rights, under Directives 2013/32 and 2013/33. The second sentence of that recital further states that, to that end, Member States should register the fact that those persons are applicants for international protection as soon as possible. It follows from all of the foregoing that a third-country national acquires the status of an applicant for international protection, within the meaning of Article 2(c) of Directive 2013/32, from the point when he or she ‘makes’ such an application. Whilst it is for the Member State concerned to register the application for international protection, pursuant to the first and second subparagraphs of Article 6(1) of that directive, and the lodging of that application requires, in principle, that the applicant for international protection complete a form provided for that purpose, in accordance with Article 6(3) and (4) of that directive, the act of ‘making’ an application for international protection does not entail any administrative formalities, as the Advocate General observes in point 82 of his Opinion, since those formalities must be observed when the application is ‘lodged’.”
[15] Tribunal of first Instance Brussels, 29 June 2023, nr. 2022/4618/A, available in French at https://tinyurl.com/3xmwjkxx.
[16] Based on on-site findings done by the NGO Vluchtelingenwerk Vlaanderen, that is present at the registration centre on a daily basis.
[17] Articles 51/3-51/10 Aliens Act; Articles 10 and 15-17 Royal Decree on Immigration Office Procedure.
[18] Unless the applicant has a residence permit on another basis, other parallel residence procedures are ongoing or other reasons related to art. 3 ECHR stand in the way of issuing an order to leave the territory.
[19] See Immigration Office, ‘Protection Status’, available in Dutch, French and English at https://tinyurl.com/ujhuau65.
[20] Myria, Contact meeting 19 January 2022, available in French and Dutch at https://bit.ly/3sy9SFN, 14.
[21] Immigration Office, ‘Applications for international protection: monthly statistics February 2023’, available in French at: https://tinyurl.com/msxz4ban, 12 and ‘Applications for International protection: monthly statistics February 2024’, available in French at: https://tinyurl.com/482fphcw, 12.