Author
The law provides for some situations in which reception conditions and material aid can be refused or withdrawn or even – in the case of material aid – recovered from the asylum seeker. Such decisions are only possible for individual reasons related to the asylum seeker.
Sanctions for violation of house rules
Different limitations to the enjoyment of reception conditions can be imposed for infractions of the house rules of a reception centre. Two decrees regulating the matter were published in 2018:
- A royal decree on the system and operating rules in reception centres and the modalities for checking the rooms;[1]
- A ministerial decree on common house rules in reception centres.[2]
The Royal decree stipulates the general rules while the ministerial decree implements them and contains a list of house rules. One part of them is obligatory for all reception facilities; the other part varies depending on the specific reception structure. These rules apply in all reception facilities, except for minors’ observation and orientation centres.
The common obligatory house rules include:
- Respect the infrastructure;
- No drugs, alcohol and no smoking;
- One should signal their absence from the centre for the night. If one is absent from the assigned place for 3 consecutive days without prior notice or for more than 10 nights in one month (with or without prior notice), they may be unsubscribed from the centre (in that case one can ask for another centre at the dispatching service of Fedasil).
Possible sanctions are enumerated in Article 45 of the Reception Act:
- the formal warning with an entry in the social dossier;
- the temporary exclusion from the activities organised by the reception structure;
- the temporary exclusion from the possibility of doing paid community services;
- the restriction of access to certain services;
- the obligation to perform tasks of general benefit (in case of non-performance or defective performance this may be considered as a new offence);
- the temporary suspension or reduction of the daily allowance, with a maximum period of four weeks;
- the transfer, without delay, of the asylum seeker to another reception structure;
- the temporary exclusion of the right to material assistance, for a maximum duration of one month;
- the definitive exclusion of the right to material assistance in a reception structure.
The procedures for applying these sanctions can be found in a Royal Decree.[3]
As a sanction for having seriously violated the house rules, and thereby putting others in a dangerous situation or threatening the security in the reception facility, the right to reception can be suspended for a maximum of one month.[4] This measure was taken against 148 persons in 2023, for an average duration of 16 days.[5]
The law makes it possible to withdraw reception permanently.[6] The sanction can only be used for persons, who had been temporarily excluded from reception before, subject to the aforementioned sanction, or in serious cases of physical or sexual violence. Three applicants were permanently excluded from reception in 2023.[7]
Sanctions are issued by the centre’s managing director and must be motivated. The person who received the sanction must be heard before the decision. Most sanctions can be appealed before the managing authority of that reception centre (the Director-General of Fedasil, the NGO partner or the administrative council of the PCSW). An onward non-suspensive appeal is possible in front of the Labour Court.[8] As with every other administrative or judicial procedure, the asylum seeker is entitled to legal assistance, free of charge if they have no sufficient financial means. In all these cases, the reception conditions will be reinstated as soon as the sanction – mostly temporary– has elapsed. During 2023, 23 appeal procedures against exclusions decisions taken by Fedasil were introduced before Labour tribunals.[9]
The sanctions that exclude the asylum seeker from the reception facilities (one month or permanently) must be confirmed within 3 days by the Director-General of Fedasil. If they are not confirmed, the sanction is lifted. During the time of exclusion, the asylum seeker still has the right to medical assistance from Fedasil. The applicant has the legal right to ask Fedasil for a reconsideration of this sanction, in case theycan demonstrate that there is no other possibility to ensure living conditions in accordance with human dignity. Fedasil should answer this request within 5 days, after which an onward appeal is again possible in front of the Labour Court.[10] In 2022, only one requests for reconsideration of the exclusion from the reception facilities were made. The request led to a decrease in the number of days of the exclusion.[11]
Before its adoption, the permanent exclusion sanction was met with criticism by UNHCR who highlighted that Article 20(1)-(4) of the recast Reception Conditions Directive only allows a limited number of situations in which reception facilities can be withdrawn or reduced and that exclusion as a sanction is not one of them. UNHCR recommended that attention should be given to Article 20(5) of the Directive, which guarantees an individual, impartial and objective decision that considers the person’s particular situation (e.g., vulnerability) and the principle of proportionality. Health care and a dignified standard of living should always be ensured. Further recommendations were to make sure the law explicitly mentions the possibilities to ensure dignified living conditions and to describe clearly in which situations this sanction applies.[12] The Council of State also advised that there should be an explicit guarantee in the law on how to ensure dignified living conditions for those excluded from the reception facilities.[13] Nevertheless, the options on how to ensure dignified living conditions were in the end not clearly mentioned in the law, although during the preparatory works of the law Fedasil made clear that it has a cooperation with an organisation that works for homeless people to which it could refer some of those excluded from shelter. In practice when they communicate the decision to the asylum seeker, they inform them of the refund of medical costs and of shelter possibilities for homeless people, but “guarantees for dignified living conditions” are not used as a criterion during the decision-making. The applicant can also contact Fedasil again if dignified living conditions cannot be guaranteed.
In March 2018 the Labour Court of Brussels referred preliminary questions to the CJEU regarding the circumstances under which material reception conditions under the Reception Conditions Directive may be reduced or withdrawn and the need to examine the consequences of such decisions, particularly about unaccompanied children.[14] The case concerned an unaccompanied minor who was refused the right to an accommodation for 15 days. He therefore had to live on the street and at a relative’s place. After 15 days, he was finally accommodated by Fedasil again. In its decision Haqbin of 12 November 2019, the CJEU ruled that, where house rules of an accommodation are breached or where a violent behaviour occurs, the sanction cannot be the withdrawal of material reception conditions relating to housing, food or clothing, even if it is temporary. Such sanctions must be taken with even more precaution when they involve vulnerable applicants such as unaccompanied minors. According to the CJEU, even the most severe sanction should not deprive the applicant of the possibility of meeting his most basic needs. Member States should ensure such a standard of living continuously and without interruption. They should grant access to material reception conditions in an organised manner and under their responsibility, including when they call upon the private sector to fulfil that obligation. It is therefore not sufficient for them to provide a list of private homeless centres which could be contacted by the applicant, as Fedasil did in the present case. The competent authorities must always ensure that a sanction complies with the principle of proportionality and does not affect the applicant’s dignity.[15]
Based on this CJUE decision, the Brussels Labour Court ruled against Fedasil on 7 October 2021, condemning the Agency to moral damages of 1€ for having excluded Haqbin from reception conditions, in violation of the Reception Directive.[16]
Notwithstanding the jurisprudence of the CJUE and the Brussels Labour Court, Fedasil continues to apply temporary and indefinite exclusion as sanctions for certain situations of violent behaviour (148 temporary and 3 definitive exclusions in 2023).[17] Fedasil has indicated that it is examining new measures, such as allowing night reception and issuing meal checks during the period of the exclusion sanction. However, due to urgent events such as the COVID-19 outbreak and the reception crisis, the envisaged partnerships with e.g., organisations providing night shelter have not yet been put in practice. In the meantime, Fedasil provides excluded applicants with a list of emergency shelters and informs them that, in case a dignified living standard cannot be ensured, they can request a reconsideration of the exclusion decision.[18]
Other grounds
Under the Article 4(1) of the Reception Act, Fedasil may refuse or withdraw the assignment of a reception place if:
- Such a place has been abandoned by the asylum seeker. This applies in cases where the asylum seeker is absent for 3 consecutive days without prior notice or for more than 10 nights in one month (with or without prior notice). The asylum seeker is then ‘de-registered’ from the centre and has the right to ask for a new place. In the context of the reception crisis that started in 2021, this measure is still applied: in 2022, 1593 persons were expelled from their centre due to absence without permission.[19] No figures are available for 2023. However, asylum seekers who are thus de-registered from their centre are not able to re-integrate the reception network due to a lack of places in the context of the current reception crisis. Consequently, they must register on the waiting list of Fedasil, which leads to a waiting time of several months before they are able to re-integrate the reception network.
- The asylum seeker does not attend interviews or is unwilling to cooperate when asked for additional information in the asylum procedure. Worryingly, Fedasil is not required to await an official decision of the Immigration Office, CGRS or CALL on the asylum procedure to take such a decision. In early 2020, Fedasil published instructions applying this possibility.[20] If an asylum seeker does not lodge the application for international protection after they made it (on the appointment date the Immigration Office gave on “the certificate of declaration”), and they were not present to the new appointment date obtained with the help of the social worker in the centre, the centre will end the material reception. The asylum seeker will only have the right to ask for the reimbursement of medical costs, until they regularise their situation and lodge an application at the Immigration Office. Once the annex 26 has been obtained, the applicant can request material reception again at the “Infopunt” of Fedasil.
- The applicant makes a Subsequent Application.
Article 4(3) of the Reception Act prescribes that the decisions of revocation or limitation of reception conditions should always:
- be individually motivated;
- be taken with due regard to the specific situation of the person concerned, in particular where vulnerable persons are concerned, and to the principle of proportionality;
- to ensure access to medical care and a dignified standard of living.
A sanction can also be imposed for having omitted to declare resources at the time of making the application.[21] Until now, only the withdrawal of the reception place assigned to the asylum seeker has been decided in case of a proven sufficient and sufficiently stable income in practice. In 2023 however, this measure was not been applied.[22]
No reduction of material reception conditions is legally foreseen in case the asylum seeker has not introduced his asylum application within a “reasonably practicable” period after arrival. This is only a relevant criterion for the CGRS when determining the well-foundedness of the application itself.
Reduction or withdrawal of reception due to a professional income
The Reception Act allows reducing or withdrawing the reception of applicants with a professional income. The concept and means used for calculating financial resources and the part to be contributed are determined in a Royal Decree of 2011. The Royal Decree stipulates that if an asylum seeker resides in a reception facility (LRI or collective centre) and is employed, they have an obligation to contribute with a percentage of their income to the reception facility (from 35% on an 80€ monthly income to 75% on a monthly income of more than 500€) and is excluded from any material reception conditions if their income is higher than the social welfare benefit amounts mentioned above and the working contract is sufficiently stable.[23] The applicant also has an obligation to inform the authorities. A control mechanism is provided for in the abovementioned Royal Decree. In 2022, one cross-examination was done with lists of people residing in the Fedasil reception network and the Crossroads Bank for Social Security, which allowed to identify residents who had worked in the period September 2021-september 2022.[24] The possibility to conduct such cross-examinations of data on a regular basis is introduced in a new proposal for Royal Decree concerning the contribution scheme, that is in the process of validation.[25]
In 2023, contributions were asked of 736 persons and Fedasil received a total amount of €334,000.[26]
In November 2022, in the context of the reception crisis, Fedasil issued a new instruction concerning the forced and voluntary withdrawal of reception conditions for working applicants.[27] The aim of this instruction being to free up spaces in the reception network, it ordered the compulsory withdrawal of reception conditions for applicants having a stable work contract (min. 6 months) providing an income higher than the minimal living wage. 360 applicants were given a decision of forced withdrawal (‘code 207 no show’) and were initially expected to leave the centre within a month. In most cases, the deadline for was extended to give the applicants more time to look for housing. Given the housing crisis on the private housing market, it appeared to be very difficult to find housing within a month. After November 2022, no forced withdrawal decisions were issued. Some applicants who were working opted for a voluntary withdrawal of reception conditions, mostly to avoid the contribution scheme (43 in 2022, 76 in 2023).[28]
[1] Royal Decree on the system and operating rules in reception centres and the modalities for checking rooms, 2 September 2018.
[2] Ministerial Decree on house rules in reception centres, 21 September 2018.
[3] Royal Decree of 15 May 2014 on the procedures for disciplinary action, sanctions and complaints of residents in reception centres.
[4] Article 45(8) Reception Act.
[5] Information provided by Fedasil, March 2024.
[6] Article 45(9) Reception Act.
[7] Information provided by Fedasil, March 2024.
[8] Article 47 Reception Act.
[9] Information provided by Fedasil, March 2024.
[10] Article 45 Reception Act.
[11] Information provided by Fedasil, March 2023.
[12] UNHCR, Commentaires du Haut Commissariat des Nations Unies pour les réfugiés relatifs à l’avant projet de loi modifiant la loi du 12 janvier 2007 sur l’accueil des demandeurs d’asile et de certaines autres catégories d’étrangers (ci-après « avant-projet de loi »), introduisant des sanctions supplémentaires en cas de manquement grave au régime et règles de fonctionnement applicables aux structures d’accueil, 22 April 2016, available at: https://bit.ly/3tZArSX.
[13] Council of State, Opinion 59/196/4, 27 April 2016, available at: http://bit.ly/2kVBgvT.
[14] Labour Court Brussel No 2017/AB/277, 22 March 2018, available at: https://bit.ly/2Thk6dM.
[15] CJEU, Case C-233/18 Haqbin, Judgment of 12 November 2019.
[16] Labour Court Brussels N° 2017/AB/277, 7 October 2021, available in Dutch at: https://bit.ly/3MGUwqA.
[17] Information provided by Fedasil, March 2024.
[18] Information provided by Fedasil, March 2023.
[19] Information provided by Fedasil, March 2023.
[20] Instructions of Fedasil on the limitations on the right to reception in case of non-lodging an application for international protection, of 20 January 2020.
[21] Articles 35/1 and 35/2 Reception Act.
[22] Information provided by Fedasil, March 2024.
[23] Articles 35/1 Reception Act and Royal Decree, 12 January 2011, on Material Assistance to Asylum Seekers residing in reception facilities and who are employed (original amounts without indexation).
[24] Information provided by Fedasil, March 2023.
[25] Information provided by Fedasil, March 2024.
[26] Information provided by Fedasil, March 2024.
[27] Fedasil Instruction, Forced and voluntary abrogation of the designated reception place (Code 207) on the basis of employment, 10 November 2022, available in Dutch: https://bit.ly/3QPZCTZ.
[28] Information provided by Fedasil, March 2024.