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, 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 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] 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 Syrian nationals. Many of them have come to Belgium via the resettlement scheme.  A quarter of long stay humanitarian visa was accorded to Afghan nationals, many of them in the context of the evacuation missions in the summer of 2021.[2]

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.[2] The applicant needs to pay an administrative fee of €220 per adult person.[3] There are no deadlines for the Immigration Office laid down in law.

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. 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 for the family member in Belgium may also play a role in avoiding the applicant having to rely on social assistance.

Due to the criteria above, a humanitarian visa is mainly 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. The family is usually separated by the forced flight;
• Third country nationals who find themselves in an urgent humanitarian/precarious situation.

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.[4]

Resettlement

Since 2013, Belgium has an official resettlement policy. 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 person’s vulnerability and to carry out the required security checks. If a person is eligible to be resettled to Belgium, the third country national receives a humanitarian visa. Upon arrival in Belgium, the person can introduce an application for international protection.

Belgium pledged to resettle 1,250 persons in 2022, 1,400 in 2023 and 1,500 in 2024. Most of the third country nationals to be resettled would be Syrians currently hosted in Türkiye and Lebanon.[1]

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. [2] These 71 were mainly Syrian refugees being transferred from Jordan, Egypt or Lebanon. According to the Secretary of State, the transfer of 361 refugees who had already been selected for the resettlement program were put ‘on hold’ for an undetermined period of time.[3] A lack of reception places being the main reason for the obstruction of the resettlement program, Fedasil has started to invest in a Community Sponsorship program in collaboration with Caritas International,[4] as an alternative reception model to secure the effective implementation of resettlement programs in the future.[5]

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 actually relocated. The remaining 74 persons will be relocated in 2022.[1]

No pledge was made for 2022, as the Belgian government indicated it does not consider relocation as an effective solution to structural issues of the European asylum system.[2]

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

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

[1] Policy note of the Secretary of State on asylum and migration, 3 November 2021, available in French: https://bit.ly/3rKjJH4.

[2] 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 via http://bit.ly/3ZALJfS.

[3] Standaard, ‘For refugees who want to come to Europe via legal pathways, there is no place in Belgium’, 24 January 2023, available in Dutch via http://bit.ly/3ZALJfS.

[4] Information available on http://bit.ly/3ZBB0Sr.

[5] Fedasil, ‘Resettlement 71 refugees in 2022’, 5 January 2023, available in Dutch via http://bit.ly/3ZPGBop.

[6] CGRA, ‘Resettlement’, available in English: https://bit.ly/3rBRN7V.

[1] Ibidem.

[2] Article 9, Aliens Act.

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

[4] European Court of Human Rights [GC], M.N. and others v. Belgium, Application no. 3599/18, 5 May 2020, summary available at: https://bit.ly/2NwtzLS.

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

[2] Myria, Migration in numbers and in rights: Year report Migration 2022 – Access to the territory, available in French: https://bit.ly/3PzkPRh, 11.