Registration of the asylum application

Belgium

Country Report: Registration of the asylum application Last updated: 08/04/22

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The Immigration Office is the authority responsible for the registration of asylum applications.

The law foresees a three-stage registration process:

  1. The asylum seeker “makes” (présente) his or her application to the Immigration Office within 8 working days after arrival on the territory.[1] An application at the border is made with the Border Police Section of the Federal Police immediately when the person is apprehended at the border and asked about his or her motives for entering Belgium,[2] or with the prison director in penitentiary institutions. These authorities refer the application immediately to the Immigration Office. Other applicants make their application at the arrival centre (Petit Château/Klein Kasteeltje). The asylum seeker receives a “certificate of declaration” (attestation de declaration/bewijs van aanmelding) as soon as the application is made.[3]

Under the law, failure to apply for a residence permit after irregularly entering the country or failure to apply for international protection within the 8-day deadline constitutes a criterion for the determination of a “risk of absconding”.[4] Non-compliance with this deadline can also be taken into consideration by the CGRS as one of the elements in assessing the credibility of the asylum claim. It is not clear if or to what extent these provisions are currently being applied.

On 22 November 2018 a maximum quota per day on the number of people who could make their asylum application was introduced. This measure was suspended by the Council of State on 20 December 2018.[5] The civil society organisations invoked, inter alia, Articles 6 and 7 of the recast Asylum Procedures Directive, to argue that the measure was unlawful. The Council concluded that such a measure constitutes a barrier to the effective exercise of the fundamental right to apply for asylum, as enshrined in the 1951 Geneva Convention and the national law. The Council further stressed the importance of Article 7(1) of the recast Asylum Procedures Directive, which obliges the Member States to make sure that every person, whether a minor or an adult, has the right to make an asylum request. In that regard, it found that the contested act was making it prima facie unreasonably difficult to gain effective access to the procedure.

While issues on the access to the asylum procedure had been reported in early 2019, this did not persist throughout the year. However, isolated incidents continued to be reported from time to time. On 18 November 2019 for example, 65 people were not allowed to apply for asylum due to a lack of reception space and had to come back the following day.[6] On 9 March 2020, 69 persons were not able to make their claim for international protection. These persons received a document which indicated that they had to return the next day in order to lodge their claim for international protection.

Due to the outbreak of the COVID-19 pandemic, the Immigration Office closed its doors to the public on 17 March 2020. As a result, applicants for international protection were unable to apply for international protection during this closure. On 3 April 2020 the Immigration Office re-opened its doors and launched a new online registration system for persons who wanted to apply for international protection. Applicants had to fill in their personal information in an online form, which was only accessible in Dutch or French. Once an applicant had completed the online registration, he/she received a confirmation email stating he/she would be invited at the Immigration Office to apply for international protection at a later date. After an undefined number of days/weeks, the person then received a second email with an invitation for an appointment at the Immigration Office. The applicant then had to be present at the Immigration Office on the indicated date in order to introduce his request for international protection. According to the Immigration Office, this new way of working would make it possible to resume registrations of requests for international protection while also respecting COVID-19 sanitary measures.[7]

For the duration of the existence of the online registration system, Vluchtelingenwerk Vlaanderen was present at the Immigration Office to monitor the situation.[8] The following observations are mostly based on these monitoring activities. Asylum seekers faced various extra obstacles in accessing the asylum system due to this online registration system:

  • Firstly, the waiting time between the completion of the online registration and the invitation by the Immigration Office to get an appointment for an appointment to effectively apply for international protection was long, in some cases up to several weeks.
  • Secondly, asylum seekers encountered various practical difficulties when trying to complete the online registration. The form was only available in Dutch and French. As result, the majority of the applicants were unable to fully understand the registration form and had to rely on help from third persons or NGO’s. In addition, the registration form was only accessible from smartphones with a Belgian sim-card or from computers with a Belgian IP-address. Since most of the asylum seekers do not have either of these, they were unable to access the online registration form. Furthermore, the applicants had to provide an email address in order to be able to receive the invitation, which many did not have.
  • Thirdly, non-accompanied minors were not automatically granted access to the Immigration Office to lodge their request for international protection. Especially non-accompanied minors aged 16 to 18 had difficulties accessing the procedure if they did not register online for an appointment. Those who did register for an online appointment, often had to wait multiple days (in some cases more than one week) until they received an appointment.

Moreover, the Immigration Office did not consider the completion of online registration form as a formal request for international protection. As a result, many applicants who had completed the online registration form – i.e. who had indicated that they were in need of protection – were left destitute since they had no formal right to reception (see Criteria and restrictions in accessing reception conditions).

Because of such shortcomings, the online registration system came under heavy criticism from various NGO’s. In August 2020, a number of NGO’s declared the Belgian state in default at the Brussels court of first instance thereby requesting for a suspension of the online registration system. On 5 October 2020, the court condemned the Belgian state, stating that the completion of the online registration was equal to ‘the formal lodging of a request for international protection’ and should therefore give the immediate right to reception conditions. The Belgian state was given 30 days to change the registration system in a way that ensured the immediate access of applicants to the reception system.[9] As a result, the Immigration Office suspended the online registration system and resumed the previous system of physical, spontaneous registrations on 3 November 2020. The Immigration Office later announced it wants to evolve towards a dual system, where applicants can choose to either register online and receive an appointment or go to the Immigration Office without registering online.  At the time of writing it is unknown when and how this system will be deployed in practice.

In the context of the reception crisis that started mid-October 2021, access to the asylum procedure was, once again, severely impacted. For several weeks, the number of persons allowed to make an application for international protection was limited to the places available on that day in the reception system. In practice, every morning people lined up at the gates of the arrival centre “Klein Kasteeltje”/”Petit Château”. Priority was given to families with minor children and non-accompanied minors. Afterwards, a different number of single men was given access to the arrival centre each day, depending on available places in the reception system. Once that number was reached, the remaining men were told to come back another day. Some men had to wait in line for days before being able to make their asylum application. As a consequence, these men were not yet considered ‘asylum seekers’ and could not claim certain fundamental rights linked to this status, such as the right to reception. The Labour Court, where urgent appeal cases were introduced in order to demand a reception place for persons being refused access to the reception network, rejected the appeals introduced by applicants who had not been able to make their asylum application and thus did not dispose of an Annex 26 yet, by lack of their official quality of ‘asylum seeker’. Lawyers tried to remedy this issue by first sending an e-mail to the Immigration Office, signalling their clients’ intention to apply for asylum, before introducing their appeal at the Labour Court, maintaining that the practice was in contradiction with the jurisprudence of the CJEU.[10] Regardless, the Labour Court continued to reject the appeals for this category of applicants.

On 18 November 2021, several national, Flemish and French speaking NGOs (Vluchtelingenwerk Vlaanderen, CIRÉ, Médecins sans Frontières, Médecins du Monde, NANSEN vzw, ADDE, Ligue des Droits Humains, SAAMO and the Order of French and German speaking bar associations (OBFG)) declared the Belgian State and Fedasil in default at the Brussels court of first instance. In a judgment of 19 January 2022, the court condemned the Belgian State and Fedasil for not ensuring access to the asylum procedure and to reception conditions and ordered both parties to ensure the respect of these fundamental rights, imposing a €5000 penalty payment for the respective parties for each day during the following 6 months on which at least one person would not receive access to the asylum procedure (penalty for the Belgian State) or to the reception system (penalty for Fedasil).[11] During the first period following the judgment, all applicants went back to receiving immediate access to the asylum procedure, being allowed to make their asylum application on the first day of presence at the arrival centre.[12] However, due to an increase of applicants following the outbreak of the war in Ukraine, since 28 February 2022, people are once more impeded from accessing the asylum procedure. Minors, families with children and particularly vulnerable applicants are given priority and are allowed to apply for asylum and be assigned a place of reception. A large part of newly arrived single men is refused access to the asylum procedure and asked to come back on an unspecified later date. On some days, more than 150 men are refused access to the asylum procedure and reception conditions.[13]

  1. The Immigration Office registers the application within 3 working days of “notification”.[14] This can be prolonged up to 10 working days when a large number of asylum seekers arrive at the same time, rendering it difficult in practice to register applications within the 3 working days deadline.[15]
  2. The asylum seeker “lodges” (introduit) his or her application either immediately when it is made, or as soon as possible after the “notification” but no later than 30 days after the application has been made.[16] This period may exceptionally be prolonged by way of Royal Decree, which has not occurred so far. When the application is lodged, the asylum seeker receives a “proof of asylum application” certifying his or her status as a first-time applicant (“Annex 26”) or a subsequent applicant (“Annex 26 quinquies”). The Immigration Office informs the CGRS of the lodging of the application.[17]

In the context of the COVID-19 sanitary measures, the three-phase system was changed and applicants now immediately lodge their application at the arrival centre on the moment of making the application. They immediately receive the Annex 26. The aim is to avoid unnecessary movements of applicants between the different services and to respect the 3-day time limit of article 50(2) of the Aliens Act even if confinement is necessary. This system is currently still being applied. Consequently, asylum applications are currently being made, registered and lodged on the same day.[18]

The asylum section of the Immigration Office is responsible for:

  • Receiving the asylum application;
  • Registering the asylum seeker in the so-called “waiting register” (wachtregister/registre d’attente), a provisional population register for foreign nationals (this occurs at the stage of the lodging phase);
  • Taking fingerprints and a photograph;
  • Conducting the Dublin procedure.

After having applied for asylum, the applicant is invited at the Immigration Office on a later date for a short interview to establish their identity, nationality and travel route. If it is suspected that another country is responsible under the Dublin Regulation, the applicant is interviewed about the reasons for having left it, and that motivated them to move to Belgium. During this short interview, a lawyer cannot be present.

If Belgium is the responsible country under the Dublin Regulation, the Immigration Office and the asylum seeker, with the help of an interpreter, fill in a questionnaire for the CGRS about the reasons why he or she fled his or her country of origin, or, in case of a subsequent asylum application, which new elements are being submitted. Afterwards the file is sent to the CGRS. The questionnaire about the reasons for the asylum application and impossibility of a return to the country of origin is transferred to the CGRS as well.[19] The asylum section of the Immigration Office is furthermore responsible for the follow-up of the asylum seeker’s legal residence status throughout the procedure as well as the follow-up of the final decision on the asylum application. This means registration in the register for aliens in the case of a positive decision, or issuing an order to leave the territory in the case of a negative decision.

Within the Immigration Office, the Closed Centre section is responsible for all the asylum applications lodged in detention centres and prisons, while the Border Inspection section is responsible for asylum applications lodged at the border. The three sections within the Immigration Office (Asylum section, Closed Centres section and Border Inspection section) follow the exact same procedure within the Immigration Office’s general competence, each for their respective ‘categories’ of asylum seekers.

There have been significant delays in the asylum procedure at the stage of the Immigration Office, due to a high influx of cases and understaffing issues at the Immigration Office. Even though the lodging takes place no later than 30 days after the application has been made in accordance with legal standards, the first interview might be conducted more than several months later in certain cases.[20] Applications in which there is a Dublin-hit will be treated in priority in order to meet the time limits set out in the Dublin III regulation. Other cases, such as those from Afghan nationals and nationals from ‘safe countries’, are also treated with priority.

 

 

 

[1] Article 50(1) Aliens Act.

[2] Ibid.

[3] Article 50(2) Aliens Act.

[4] Articles 1(11) and 1(2)(1) Aliens Act.

[5] Council of State, Decision No 243.306, 20 December 2018, available in Dutch at: https://bit.ly/2WquTQK.

[6] Vluchtelingenwerk Vlaanderen, ‘Opnieuw asielzoekers op straat: kroniek van een aangekondigde opvangcrisis’, https://bit.ly/303Pr3C ; Le Vif, ‘Des demandeurs d’asile trouvent de nouveau les portes closes au Petit-Château’, 18 November 2019, https://bit.ly/2R50xkI; De Standaard, ‘65 mensen kunnen geen asiel aanvragen in Klein Kasteeltje’, 19 November 2019, https://bit.ly/2sTibjA.

[7] Myria, Contact meeting, 6 May 2020, available in French at: https://bit.ly/3sE592s, 3-10; Myria, Contact meeting, 16 September 2020, available in French at: https://bit.ly/3sE592s, 3-7.

[8] See Vrt Nws, Vrt Nws, Asylum seekers wait on the streets for weeks before being able to register: “Barely 1 in 3 gets the chance”, 8 May 2020, available in Dutch at: http://bit.ly/3t38o3D.

[9] Brussels Court of First Instance, decision nr. 2020/105/C of 5 October 2020, available in French at: https://bit.ly/3KgWNqR.

[10] CJEU, judgment of 25 June 2020 in case nr. C-36/20 PPU, §§ 92-94.

[11] The Brussels Time, ‘Court condemns Belgium for asylum crisis, situation remains precarious’, 21 January 2022, https://bit.ly/3H2kTUo.

[12] However, only a week after the court decision, Fedasil again structurally refused access to reception conditions to applicants having already introduced an application for international protection or having already received an international protection status in another EU member state, in violation of the judgment of 19 January 2022.

[13] Vluchtelingenwerk Vlaanderen, ‘Ukraine: from tension to open conflict’, available in Dutch at: https://bit.ly/3IZjMG8; Infomigrants, ‘’They feel abandoned’: Non-Ukrainian asylum seekers in Belgium left out in the cold’, 25 March 2022, available in English at: https://bit.ly/3LsUYY5.

[14] Article 50(2) Aliens Act.

[15] Ibid.

[16] Article 50(3) Aliens Act.

[17] Ibid.

[18] Myria, Contact meeting, 16 September 2020, available in French at: https://bit.ly/3sE592s.

[19] Articles 51/3-51/10 Aliens Act; Articles 10 and 15-17 Royal Decree on Immigration Office Procedure.

[20] Myria, Contact meeting 19 January 2022, available in French and Dutch at https://bit.ly/3sy9SFN, 14.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation