Access to the territory and push backs

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There are no published reports by NGOs about cases of actual refoulement at the border of persons wanting to apply for asylum.

In French, returning someone at the border without allowing them to access the territory, but after having examined their asylum application on its well-foundedness, is wrongly referred to with the legal term “refoulement”. This may add to the confusion between a genuine refoulement (or “push back”) and the execution of a return decision.

Border monitoring

In Belgium, no border monitoring system corresponding to the definition set by UNHCR is in place. However, several organisations have formed a coalition active in the field of administrative detention of migrants. Since January 2021, this coalition has been officially in place and known as Move (www.movecoalition.be).  Move Coalition is accredited to visit detention centres. The visitors of Move visit all detention centres in Belgium on a weekly basis (see Conditions of detention).

Legal access to the territory

Humanitarian visa

Third country nationals can apply for a humanitarian visa. No exact criteria, definitions or requirements specified in law indicate who can obtain a humanitarian visa.[1] The Immigration Office has a broad margin of discretion and assesses each application on an individual basis. A humanitarian visa is not a right, but a favour granted by the government. Apart from humanitarian visa granted in the context of resettlement operations (see Resettlement), the Immigration Office distinguishes two types of situations in which humanitarian visa are granted:[2]

• “Enlarged family reunification”: humanitarian visa can be granted to third country nationals who fall just outside of the scope of the right to family reunification. Examples of this category could be (non-exhaustive list):
  • siblings of an unaccompanied minor who has received international protection in Belgium and who accompany their parents who are reunited with the unaccompanied minor through family reunification;
  • people who have lost their right to family reunification because the age requirement is not fulfilled anymore or because the deadline for application of the visa has expired
• Humanitarian and/or urgent situations: humanitarian visa can be granted to third country nationals who do not feel safe in their country of origin, or for urgent economical or medical reasons. However, one cannot obtain a humanitarian visa with the explicit intention to apply for international protection upon arrival in Belgium.

In 2021, the Immigration Office received a record of 3,393 applications for a humanitarian visa: 490 for a short stay and 2,903 for a long stay. 2,102 applications received a positive answer: 245 for a short stay (55% approval rate) and 1,857 for a long stay (75% approval rate). The approval rate for short stay humanitarian visa has continuously declined since 2017, from 90% in 2017 to 55% in 2021. For long stay humanitarian visa, approval rates have also been declining as of 2017 (from 91% in 2017 to 65% in 2020) but have again increased in 2021 (75%). The majority of long stay humanitarian visa was accorded to Afghan nationals.[3]

In 2022, the Immigration Office received a total of 2,671 applications for a humanitarian visa: 520 applications for a short stay visa, and 2,151 for a long stay visa.[4] It granted 1,095 visa. 78% concerned long term visa, with a positive decision rate of 56%. For the short stay visa, the positive decision rate further declined to 51% in 2022.[5]

Although the Immigration Office has a broad margin of discretion, its decision making cannot be arbitrary, and a thorough examination of each request is required. In a judgment of 24 January 2024, the CALL has annulled a decision of the Immigration Office refusing a humanitarian visa to the adult sister of an Afghan unaccompanied minor with international protection in Belgium. According to the CALL, the Immigration Office did not sufficiently consider the country-of-origin information regarding the situation of unmarried single Afghan women and their strongly deteriorated situation after the takeover of power by the Taliban. The CALL considers this information important to assess whether there is a situation of dependency in the sense of article 8 ECHR between the sister and her family staying in Belgium. By not considering this information, the CALL finds that Immigration Office has violated the duty of care and article 8 ECHR.[7]

A humanitarian visa needs to be requested by the third country national at the competent Belgian embassy in the country of origin and/or in the country of residence.[8] In the context of the war in Gaza that started in October 2023, several academics and lawyers have urged the Belgian government to allow Palestinians with Belgian family members to apply for humanitarian visa from distance, via e-mail, as has exceptionally been permitted for applications for family reunification.[9] The Belgian government only allows for the request of a humanitarian visa via e-mail in the very specific situation of so-called “hybrid cases”, where other family members can apply for visa for family reunification but a certain family member does not qualify for family reunification and thus needs to apply for a humanitarian visa instead. In other situations, requesting humanitarian visa from distance remains impossible. In a recent ruling of 2 February 2024, the Brussels Court of first instance established the Belgian state had to allow a Palestinian family in Gaza to apply for humanitarian visa using all possible telecommunication means, exempting them in the first phase of introducing the application of a personal appearance in the embassy, and exempting them from providing documents that they cannot obtain in the current context in Gaza.[10] Up to the time of writing (April 2024), the Belgian government has not made an exception for the applications for humanitarian visa.[11]

The applicant needs to pay an administrative fee of €229 per adult person.[12] The law does not determine a deadline before which the Immigration Office needs to take a decision. If the humanitarian visa is granted, applicants receive a long-term visa. Upon arrival in Belgium, they are given a temporary residence permit valid for 1 year. This residence permit can be extended annually. The extension can be subject to certain criteria such as proof of cohabitation with the family member in Belgium and the proof of work. Third country nationals who arrived in Belgium with a humanitarian visa, have the possibility to apply for international protection.

Resettlement

Since 2013, Belgium has a structural resettlement programme base on annual quotas.[13] Fedasil manages the Belgian resettlement programme with several partners. UNHCR identifies vulnerable refugees in third countries. Afterwards, CGRS officials engage in conversations with the selected persons – online or live after travelling to their country of residence – in order to screen the person’s vulnerability and to carry out the required security checks. If a person is eligible to be resettled to Belgium, Fedasil carries out pre-departure medical and social screenings and the third country national receives a humanitarian visa and a pre-departure cultural orientation by Fedasil, ‘BELCO’.[14] IOM is involved for the reservation of flights, some last medical checks and the accompaniment of the person from departure until arrival in Belgium.[15] Upon arrival in Belgium, the person can introduce an application for international protection.

Over the period 2013-2022, Belgium resettled 4,501 refugees. The programme involved mainly Syrians from the neighbouring Turkey, Jordan and Lebanon, and Congolese from the Great Lakes region.[16] Belgium initially pledged to resettle 1,250 persons in 2022, 1,400 in 2023 and 1,500 in 2024.  The pledges for 2023 and 2024 were afterwards lowered to 500 in both years, due to the reception crisis. For 2025, Belgium pledged to resettle 1,000 persons.

Due to the ongoing reception crisis (see Constraints to the right to shelter) the resettlement programme is severely impacted. During 2022, only 71 out of 1,250 resettlements (6%) were effectively executed. [17]  These 71 were mainly Syrian refugees being transferred from Jordan, Egypt or Lebanon. In 2023, 287 persons were resettled to Belgium.[18] The majority of resettled individuals are Congolese refugees transferred from Rwanda, followed by the Syrian refugees, mainly relocated from Jordan and Egypt.

In 2023, Fedasil opened a reception centre dedicated to the reception and support of resettled refugees.[20] It also started to invest in a Community Sponsorship programme in collaboration with Caritas International,[21] as an alternative reception model to secure the effective implementation of resettlement programmes in the future.

Relocation

Up until 2021, Belgium had an annual relocation policy in place. The highest number of relocated asylum seekers were registered in 2016 and 2017 (200 and 895, respectively) but significantly decreased in the following years, reaching only 18 in 2020 and 43 in 2021. After the fire in the Moria camp in Greece on 9 September 2021, the Belgian government pledged to relocate 117 persons in 2021. Due to administrative issues in Greece and the reception crisis in Belgium, only 43 persons were effectively relocated. The remaining 74 persons would be relocated in 2022.[23] Of this remaining group, 6 persons (1 family) was relocated in 2022. The remaining 68 persons were taken of the Belgian relocation list, so they could be relocated by other member states. In 2023, 32 persons were relocated from Cyprus and in 2024 another 18 persons from Cyprus. These relocations from Cyprus took place in the context of a voluntary pledge linked to the negotiations on the EU Migration Pact.[24]

No pledge was made for 2023, as the Belgian government indicated it does not consider relocation as an effective solution to structural issues of the European asylum system.[25] After European Commission president Ursula von der Leyen called on other EU member states for solidarity with Italy during her visit to Lampedusa, Secretary of State Nicole de Moor announced Belgium would not reply positively to a request of relocation from migrants having arrived on Lampedusa, stating that the reception crisis Belgium is facing makes it impossible to agree to ad-hoc relocation requests. Unofficially, this position was also prompted by Italy’s refusal to take back applicants for international protection for which it is responsible under the Dublin regulation.[26]

[1] Articles 9 & 13 in the Aliens Act provide the only legal basis for humanitarian visa.

[2] Immigration Office, Activity report 2022, available in French: https://bit.ly/3TCCTMU, 18-19.

[3] Myria, Migration in numbers and in rights: Year report Migration 2023 – Access to the territory, available in French: https://tinyurl.com/5n7f8k94, p. 8.

[4] Ibidem.

[5] Ibidem.

[6] Immigration Office, Activity report 2022, available in French: https://bit.ly/3TCCTMU, 18-19. For data on humanitarian visa requests and recognitions in 2023, see report Immigration Office ‘Visa request – Monthly statistics, January 2024’, available in French at https://tinyurl.com/3pa62mw5.

[7] CALL, Decision N° 292036, 17 July 2023.

[8] Article 9, Aliens Act.

[9] Pascal Debruyne and others, “Maak van humanitaire praat een daad: zorg dat Palestijnen humanitaire visa per e-mail kunnen aanvragen”, opinion piece in De Morgen, 23 January 2024, available at: https://bit.ly/3xf8vRe.

[10] Brussels Court of First Instance, Decision 2023/323/C of 2 February 2024, available in French via https://bit.ly/4angpq4.

[11] Myria, Gaza strip: assistance and evacuation of Belgians and visa applications, 14 February 2024, https://tinyurl.com/mwmbc2ct.

[12] Website Immigration Office, Frequently Asked Questions, https://bit.ly/3V68y8g.

[13] www.resettlement.be

[14] Fedasil, BELCO – Belgian cultural orientation, available in French at: https://bit.ly/3xdmC9y.  

[15] Fedasil, ’10 years of resettlement in Belgium’, 5 October 2023, available in French at: https://bit.ly/43D2mKs.

[16] CGRS, ‘Resettlement’, available at: https://bit.ly/43yP6H0.

[17] Fedasil, ‘Resettlement 71 refugees in 2022’, 5 January 2023, available in Dutch via http://bit.ly/3ZPGBop. Statistics available via https://bit.ly/3Js9jpq; Standaard, ‘For refugees who want to come to Europe via legal pathways, there is no place in Belgium’, 24 January 2023, available in Dutch at: http://bit.ly/3ZALJfS.

[18] Fedasil, ‘Resettlement of 287 refugees in 2023’, 2 February 2024, available in English at https://tinyurl.com/ysm34ek9.

[19] Fedasil, Resettlement of refugees (2013-2023), available in English at: https://tinyurl.com/3z5z3yc9.

[20] Fedasil, ‘Resettlement of 287 refugees in 2023’, 2 February 2024, available in English at https://tinyurl.com/ysm34ek9.

[21] Information available at: http://bit.ly/3ZBB0Sr.

[22] This was valid until 2021, while no pledge for relocation was made in 2022 and since 2022 relocation programme stopped.

[23] Myria, Contact Meeting, 19 January 2021, available in French: https://bit.ly/3HQ18z7.

[24] Information provided by cabinet of the Secretary of State for Asylum and Migration, 25 March 2024.

[25] Chambre des représentants de Belgique, Policy note on asylum and migration, 3 November 2021, available in French: https://bit.ly/3rKjJH4.

[26] De Standaard, ‘Despite Von der Leyen’s call, Belgium is not helping Italy’, 19 September 2023, available in Dutch at: https://bit.ly/3PBFp4A.