Author
When asylum seekers are detained, they are informed in writing of the detention decision, its reasons and the possibility to lodge an appeal.[1] Civil society organisations criticise the fact that detention decisions are mostly motivated in a standardised, non-individualised way,[2] the motives being mostly limited to 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, but in some centres a social interpreter is arranged by the centre’s social assistant on request by the detainee.[3]
National legislation does provide for judicial review of the lawfulness of detention. Unlike in case of a suspect in criminal cases, an asylum seeker who is detained is not automatically brought before a judge to determine the lawfulness of their detention, but they can lodge a request to be released with the Council Chamber (Raadkamer | Chambre du Conseil) of the Criminal Court every month.[4] 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.[5] 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 before the Court of Cassation.
It is only when the Immigration Office decides to prolong the detention for another month after the applicant has spent already 4 months in detention, that an automatic review by the Council Chamber of the Criminal Court takes place.[6]
The scope of judicial review of detention remains very limited. Only the legality of the detention can be examined, not its appropriateness nor its proportionality.[7] This means that only the accuracy of the factual motives of the detention order can be scrutinised i.e., whether the reasons for detention are based on manifest misinterpretations or factual errors or not. Through such a restriction, the Aliens Act prevents an effective judicial control of the conditions of necessity and proportionality it imposes itself.[8] 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 Immigration Office and the CALL, not with the criminal courts. However, judicial review by the CALL of a “refoulement decision” issued when applying for asylum at the border will only be done once its execution becomes imminent, which is only the case once the asylum application has been refused (see below).
The scope of the judicial review on the legality of detention measures is almost arbitrary and the Court of Cassation 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 the ECtHR’s ruling in Saadi v. United Kingdom.[9] The Council or Indictment Chambers have even sometimes considered the principle of proportionality as 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 or a particularly vulnerable person is generally not taken into consideration as an argument to limit the use of detention.[10] The law that entered into force on 22 March 2018 states that an asylum seeker can be detained if no other less coercive alternative measures can be applied and if it is deemed necessary based on an individual assessment, in line with the CJEU position expressed in its earliest case law, as a result of which an overly strict interpretation of the Belgian legal framework constitutes a violation of EU law.[11] These less coercive measures have not yet been listed by way of Royal Decree. This recent reform remains to be evaluated in practice.
The procedure before the courts is determined in the Law on the Provisional Custody that applies in criminal law proceedings.[12] 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, 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 marked as a violation of Article 5(4) ECHR by the ECtHR.[13]
The European Court of Human Rights examined the legality of the detention and the effectiveness of the remedy provided against the deprivation of liberty and found a violation of the Convention on these points. As such, the Court opposed the case law of the Court of Cassation, which held for many years that an appeal against a decision depriving a person of their liberty is without foundation when, after it has been lodged, the foreign national has been detained based on another separate detention title.[14] Jurisprudence of the Court of Cassation has slightly been amended since a decision of 27 September 2022 where the Court found that the procedure had to be continued, even though the person had in the meanwhile been released.[15]
The policy note of the government, however, formulates the intention to amend this: “In addition, we are working to provide an effective remedy, whereby both the legality and the expediency of the detention can be reviewed by the courts.”[16] The government is currently making efforts to reform the Migration Code.[17] Recommendation by the Move Coalition on the judicial review of the detention order concern the introduction of automatic judicial review, assignment of territorial jurisdiction to the Council Chamber of the district in which the detention centre is located in order to facilitate the designation of a legal aid lawyer, the applicability of the procedure states in the Law on the Provisional Custody, and specialisation of the judges entrusted with the review of the detention order.[18]
While in detention, the CGRS prioritises the examination of the asylum application, although no strict time limit is foreseen.[19] The appeal against a decision by the CGRS refusing international protection must be lodged within 10 days after the first instance decision.[20] The Court of Alien Law Litigation (CALL) has already criticised the use of this fast-tracked procedure and annulled the decision of the asylum authorities in a case of an asylum applicant at the border because of the threat to his rights of defence and the principle of equality of arms.[21]
If a person is detained on the basis of a return decision, this person cannot be removed from the territory during the period in which an urgent appeal to suspend is possible before the CALL.[22] Such an appeal can be lodged within 10 (or 5 in case of a subsequent return decision) days after the return decision. Such a suspension is possible if the execution of the return decision is imminent (which is the case when the person subjected to this decision is detained), the grief is sufficiently serious and if the execution of the return decision would lead to serious harm that is difficult to repair. This suspensive appeal acts as an accessory to the appeal to annul said return decision. If the CALL proclaims the urgent suspension of this administrative decision, as a rule, the detention decision will lose its legal basis and the person concerned will have to be released.
[1] Article 17 Royal Decree on Closed Centres.
[2] Nansen, Vulnerabilities in detention : motivation of detention titles, November 2020, available in French at https://tinyurl.com/37fvm5up.
[3] The Immigration Office, in the context of its right to reply to the AIDA report, indicates that detention decisions are always both materially and legally motivated, and translated in a language the detainee understands.
[4] Article 71 Aliens Act.
[5] Article 72 Aliens Act.
[6] Article 74 Aliens Act.
[7] Article 72 Aliens Act.
[8] Move Coalition, Hervorming van het Migratiewetboek, Zomer 2021, 24 available in Dutch at https://rb.gy/psdhxe
[9] ECtHR, Saadi v. United Kingdom, Application No 13229/03, Judgment of 29 January 2008.
[10] See for examples of jurisprudence and more on this issue, BCHV-CBAR, Grens-Asiel-Detentie, Belgische wetgeving – Europese en internationale normen, January 2012.
[11] Move Coalition, Hervorming van het Migratiewetboek, Zomer 2021, 24 available in Dutch at: https://rb.gy/psdhxe.
[12] Law of 20 July 1990 concerning pre-trial detention, available in French at: http://bit.ly/1B626nE and Dutch at: http://bit.ly/1KpjZzR.
[13] ECtHR, Firoz Muneer v. Belgium; M.D. v. Belgium; ECtHR, Makdoudi v. Belgium, Application No 12848/15, Judgment of 18 februari 2020; ECtHR, Muhammad Saqawat v. Belgium, Application No 54962/18, Judgement of 30 June 2020; Myria and FIRM, Communication au Comité des Ministres du Conseil de l’Europe, au sujet de l’execution des arrêts Makdoudi c. Belgique et Saqawat c. Belgique, available in French at: http://bit.ly/3jB92WW.
[14] ECtHR, Muhammad Saqawat v. Belgium, Application No 54962/18, Judgement of 30 June 2020.
[15] Court of Cassation, 27September 2022, P.22.1122.N.
[16] Chamber of Representatives, Policy Note on asylum and migration, 4 November 2020, available in Dutch and French at: https://bit.ly/3sJdgMd, 35.
[17] The “concept note” for the Migration Code reform was approved within the Government in February 2022. The concept note outlines the overall architecture for the Migration Code on the proposal of State Secretary for Asylum and Migration. In January 2024, the proposal for Migration Code was presented to the press by the Secretary of State. The proposal is currently being discussed by the government.
[18] Move Coalition, Hervorming van het Migratiewetboek, Zomer 2021, available in Dutch at: https://rb.gy/psdhxe, 26-27.
[19] Article 57/6(2) Aliens Act.
[20] Articles 39/57 and 39/77 Aliens Act.
[21] CALL, case n° 284.595 of 10th of February 2023.
[22] Article 39/82 Aliens Act.