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 having allowed 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.
In Belgium, there is no actual border monitoring system in place that corresponds to the definition set forth by UNHCR. However, several organisations have formed a coalition active in the field of administrative detention of migrants. Since January 2021, this coalition is officially in place and known by the name Move (www.movecoalition.be). Move organises, among other things, visits and monitoring of detention centres (see Access to detention facilities).
Legal access to the territory
Third country nationals can apply for a humanitarian visa. There are no exact criteria, definitions or requirements specified in law that indicate who can obtain a humanitarian visa. In 2020, the Immigration Office received 920 applications for a humanitarian visa. 697 applications received a positive answer.
|Positive decisions on humanitarian visas in 2020, per nationality|
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 favor granted by the government. However, from practice it is clear that in its assessment the Immigration Office mainly considers:
- vulnerability, need, humanitarian and/or isolated situation, or possible protection risks, and this in the country of origin and/or in the country of residence
- special connections with persons in Belgium, especially family members (affective and/or financial dependence)
In addition, sufficient means of subsistence of the family member in Belgium to avoid the applicant having to rely on social assistance may also play a role.
Due to the criteria above, a humanitarian visa is mostly delivered to:
- Third country nationals who fall just outside of the scope of the right to family reunification. In practice, it often concerns family members of recognized refugees or subsidiary protection persons, as they often find themselves in a humanitarian/precarious situation or are exposed to certain protection risks and the family is often separated by the forced flight.
- Third country nationals who find themselves in an urgent humanitarian/precarious situation.
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. The applicant needs to pay an administrative fee of €365 per adult person. There are no deadlines for the Immigration Office laid down in law.
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.
On 5 May 2020, the Grand Chamber of ECtHR issued its decision in the case of M.N. and Others against Belgium. This case deals with the refusal by the Belgian authorities to issue humanitarian visas to a Syrian family, requested at an embassy with the view to reach Belgium in a legal and safe way in order to apply for asylum upon arrival in Belgium. The applicants, a family of four, are Syrian nationals from Aleppo, Syria. In 2016, they requested visas on humanitarian grounds from the Belgian Consulate in Beirut, Lebanon. The Belgian Immigration Office rejected their requests and the applicants requested the suspension of execution of the decision by the Council for Alien Law Litigation (CALL). The latter ruled that the political and security situation in Aleppo created an Article 3 risk and instructed the authorities to issue new decisions. The Immigration Office again rejected the applicants’ requests and the CALL suspended the decisions of the Immigration Office once more. Subsequent applications for judicial review were dismissed. Given the Belgian authorities refusal to comply with the decisions of the CALL, the applicants brought the case before the Brussels Court of First Instance, which ruled that the state had to comply (December 2016). However, a later judgment of the Court of Appeal (June 2017), in a procedure initiated by the state, ruled that the applicants had not sought to set aside the visa refusal decisions, choosing to stay the proceedings instead, which meant that the refusal decisions were never set aside and had become final. Consequently, both the second CALL decisions and the December 2017 decision of the Court of Appeal were not operative. The applicants lodged an application before the European Court of Human Rights alleging a violation of Article 3 and Article 13, on account of Belgium’s refusal to issue visas on humanitarian grounds, as well as a violation of Article 6 on the state’s failure to execute the judgments. The ECtHR declared the case inadmissible as it found that there was no jurisdiction. The applicants do not have any connecting links with Belgium and their sole presence in the premises of the Belgian Embassy in Lebanon cannot establish jurisdiction, as they were never under the de facto control of Belgian diplomatic or consular agents. Jurisdiction under Article 1 ECHR cannot be established solely on the basis of an administrative procedure initiated by private individuals outside the territory of the chosen state, without them having any connection with that State, nor any treaty obligation compelling them to choose that state.
Since 2013, Belgium has an official resettlement policy. In order to be resettled to Belgium, a third country national first has to be selected by UNHCR. After this initial selection, CGRA officials travel to the country of residence to screen the vulnerability of the person and to carry out the required security checks. If a person is eligible to be resettle to Belgium, the third country national receives a humanitarian visa. Upon arrival in Belgium, the person has the possibility of introducing an application for international protection.
Due to the current reception crisis, the resettlement programme is temporarily put on hold. As a result, the number of resettled persons was lower than originally planned. Belgium plans to resettle 1,250 persons in 2022, 1,400 in 2023 and 1,500 in 2024. The majority of the third country nationals to be resettled will be Syrians currently hosted in Turkey and Lebanon.
|Number of third country nationals resettled to Belgium|
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 actually relocated. The remaining 74 persons will be relocated in 2022.
No pledge was made for 2022, as the Belgian government indicated it does not consider relocation to be part of a structural solution.
 Articles 9 & 13 in Aliens Act provide the only legal basis for humanitarian visa.
 Article 9, Aliens Act.