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Articles 74/6 (detention on the territory) and 51/5 (detention under Dublin) of the Aliens Act refer to the need for less coercive alternative measures to be considered before imposing detention. These alternatives were supposed to be defined by Royal Decree, which has still not been adopted. On 2 May 2024, a law for a “proactive return policy” has been adopted by the Belgian Parliament.[1] Among other things, the bill aims at enshrining in the Aliens Act a list of the preventive measures and the less coercive measures that can be taken by the authorities in return cases.[2]
For detention at the border, the Aliens Act does not contain any reference to less coercive measures or to an individual assessment or the need to assess the necessity or proportionality of the detention measure prior to applying detention at the border. Although the Immigration Office indicates that it takes an individual decision for each person, taking into account all elements of the case, civil society organisations claim that detention of asylum seekers at the border is systematic (see Border detention).
In 2018, the Government decided to create a commission (Commissie Bossuyt) to evaluate the return policy in Belgium. The final report of the commission was proposed in the parliament in 2020. In the report, the Commission Bossuyt also tests the various alternatives to detention that the Government has already put in place.
- Delay in leaving the territory
A first alternative to detention consists of the extension of the deadline for leaving the territory.[3] The purpose of this extension is to allow the person to prepare for their departure. As a result, such an extension can only be granted if it is demonstrated that steps are being taken towards voluntary return, and that departure is feasible in a near future.[4] Figures show that this measure was only requested 9 times in 2019.[5] The measure is also subject to criticism. The criteria for granting the extension are not clear and fall under the discretionary power of the minister or his delegate.[6] Another issue concerns the fact that the order to leave the territory does not mention the possibility to request an extension of the deadline for leaving the territory, this is only mentioned in the law itself.[7] This possibility to postpone departure also fails to address the issue of non-removable people.[8]
- Deposit
A second alternative available is the payment of a deposit. According to the government, this measure has not proved to be an effective alternative to detention given that it is difficult to determine an appropriate amount to be deposited: if it is too high, migrants often do not have the financial means to pay the deposit; if it is too low, it will not be a sufficient incentive to leave the territory. Furthermore, according to the government, such a measure would have as a consequence the extension of the deadline for leaving the territory since the administrative authorities cannot process the payment of the deposit in the normal 30-day period.[9] This measure has therefor never been applied.
- Reporting
A third alternative concerned a reporting duty. After receiving an invite for an interview, the families were asked to appear before the Immigration Office. The measure was discontinued after a few months of its use by the government, as it bore no results in terms of increased chances of removal. Figures provided by the government show that only 10% of the 150 families that were invited showed up for the interview. The measure was considered problematic in itself according to the government, the aim should be return, not coming to report that one is still in the country,[10] and is also no longer in practice.
- Home accommodation
Specifically for families with (minor) children, two types of less coercive measures were set up: home accommodation in the context of an agreement under Article 74/9(3) of the Aliens Act and return homes (also called: ‘FITT’). For families with minors, it first attempted to guide families to return from their private house. In the period when the final report of the Commission Bossuyt was issued (2020), the coaching only consisted of one return interview due to limited personnel capacity. During the interview the residence file is examined, the willingness to return is assessed and any obstacles to return such as for example medical issues are discussed. The report of the Bossuyt Commission mentioned other problems that arise with the procedure, such as difficult cooperation with local governments and partners as well as the fact that the strict conditions of the agreement deter families rather than increasing their willingness to cooperate. Moreover, in practice the interview with the staff member of the Immigration Office often takes place at the town hall of the place where the private house is situated, which makes it impossible to identify possible changes in the behaviour of the families.[11] Currently, the coaching of families to return from their private homes is included in the ICAM coaching trajectories, and is applied in a more intensive way.
- Return houses
Families with minors are held in return homes, also called family units or FITT (see Return houses). In the strict sense, the return homes are considered an alternative to detention since they are considered as open facilities. In practice however, families residing in return houses are subject to freedom restrictions in a way that makes civil society organisations consider the return houses to not meet the conditions of a proper ‘alternative to detention’.[12]
- Case management
The final report of the Commission Bossuyt states that the most effective alternative to detention seems to be the Individual Case Management Support (ICAM), where a return coach is appointed to provide intensive guidance on return. In 2021, 60 new civil servants were recruited for the Immigration Office to start working for the newly founded department of ‘Alternatives to Detention’. They will be responsible to man local provincial ICAM-offices. After receiving an order to leave the territory a migrant will be invited to a series of interviews, where his/her file would be explained to them and a trajectory towards return or other existing procedures would be organised (depending on the individual). Attendance is mandatory and failure to cooperate with return procedures or to show up may result in detention. Since 2022, Dublin cases are, among other target-groups, the priorities of the ICAM coaches.[13]
On 2 May 2024, a law for a “proactive return policy” has been adopted by the Belgian Parliament.[14] The bill aims at enshrining in the Aliens Act, inter alia: 1) the duty to cooperate in the organisation of transfer, expulsion, return or removal (this comprises forced medical examination in case of refusal); 2) the case management by civil servants of the Aliens office in the context of a return or transfer procedure (ICAM procedure); 3) a listing of the preventive measures and the less coercive measures that can be taken by the authorities and 4) banning the detention of families with minor children in closed centres. Families with children can still be held in return houses, since national authorities consider it as an alternative to detention.
[1] Chamber of representatives, Law proposal on proactive return policy, 29 September 2023, available in Dutch and French at: https://tinyurl.com/352cu2n5.
[2] Since this law was adopted right before the publication of the AIDA update of 2023, a thorough analysis of the content of this law will be added in the update of 2024.
[3] Art. 74/14 Aliens Act.
[4] CALL, case n° 175.622 of 30th of September 2016.
[5] Commissie Bossuyt, Eindverslag van de Commissie voor de evaluatie van het beleid inzake vrijwillige terugkeer en de gedwongen verwijdering van vreemdelingen, September 2020, available in Dutch at: https://bit.ly/3RC5TTw, 57.
[6] Myria, Nota over het eindverslag van de Commissie Commissie belast met de evaluatie va het beleid inzake de vrijwillige terugkeer en de gedwongen verwijdering van vreemdelingen (Commissie Bossuyt), November 2021, available in Dutch at: https://bit.ly/3wRml8G, 14.
[7] Ibid.
[8] In the context of the right of asylum authorities to reply to the AIDA report, the Immigration Office indicates that in principle, nobody is “non-removable”: even if a forced return is not possible, people could in many cases, according to the Immigration Office, return on voluntarily and independently. MOVE has written an extensive report about the problem of non-removable persons in Belgian detention centres: MOVE, “What future for non-removable persons on Belgian soil”, June 2023, available in French (and a short version in Dutch) at https://tinyurl.com/mrxekp7m.
[9] Commissie Bossuyt, Eindverslag van de Commissie voor de evaluatie van het beleid inzake vrijwillige terugkeer en de gedwongen verwijdering van vreemdelingen, September 2020, available in Dutch at https://bit.ly/3X2F7Vv, 57.
[10] Ibid., 57-58.
[11] Myria, Nota over het eindverslag van de Commissie Commissie belast met de evaluatie va het beleid inzake de vrijwillige terugkeer en de gedwongen verwijdering van vreemdelingen (Commissie Bossuyt), November 2021, available in Dutch at: https://bit.ly/3wRml8G, 15.
[12] Platform of children on the move (Plate-forme mineurs en exil/Platform kinderen op de vlucht), ”Return houses in Belgium: a full-fledged, efficient and child-friendly alternative to detention ?”, January 2021, available in French at: https://bit.ly/3qwWYqh and in Dutch at https://tinyurl.com/4yhbs3hs.
[13] Information provided by the Cabinet of the Secretary of State Sammy Mahdi.
[14] Chamber of representatives, Law proposal on proactive return policy, 29 September 2023, available in Dutch and French at: https://tinyurl.com/352cu2n5. As the law was adopted immediately before the publication of the AIDA update of 2023, a thorough analysis of the content of this law will only be provided in the 2024 update of the report.