The Immigration Office is the authority responsible for the registration of asylum applications.
The law foresees a three-stage registration process:
- The asylum seeker “makes” (présente) his or her application to the Immigration Office within 8 working days after arrival on the territory. 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, 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.
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”. 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. 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. 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 the covid-19 sanitary measures. Since not every registered person could be invited immediately, priority was given to families with children and vulnerable persons. Non-accompanied minors (with the exception of boys aged 15 and above) were granted automatic access to the procedure if they presented themselves spontaneously at the Immigration Office without having registered online.
For the duration of the existence of the online registration system, Vluchtelingenwerk Vlaanderen was present at the Immigration Office to monitor the situation. 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 was unknown, but in some cases it could take several weeks. Over time, the backlog of persons awaiting an invitation steadily grew to 686 in September 2020 and 154 in October 2020.
- Secondly, asylum seekers encountered various practical difficulties when trying to complete the online registration. The online registration 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. A large part of the applicants did not have an email address, which made it difficult to access the online registration. In one particular case, a family with 8 minor children with no phone, literacy or social network had to wait multiple weeks before they received an invitation for an appointment at the Immigration Office.
- 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. In the case they did register for an online appointment, they 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 Right to shelter and assignment to a centre).
Because of the shortcomings listed above, the online registration system came under heavy criticism from various NGO’s. In August, 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. 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.
- The Immigration Office registers the application within 3 working days of “notification”. 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.
- 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. 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.
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.
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, taking a chest X-ray to detect tuberculosis; and
- Conducting the Dublin procedure.
At the Immigration Office, a short interview takes place to establish the identity, nationality and travel route of the asylum seeker. 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. A lawyer cannot be present during this interview.
If Belgium is the responsible country under the Dublin Regulation, 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. 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. 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. This is the case for subsequent applications or applications for which it is assumed that no other Member State will be deemed responsible under the Dublin III-Regulation. 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.
Article 50(1) Aliens Act.
Article 50(2) Aliens Act.
Articles 1(11) and 1(2)(1) Aliens Act.
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.
Brussels Court of First Instance, decision nr. 2020/105/C of 5 October 2020, available in French at: http://bit.ly/3bpjgCU.
Article 50(2) Aliens Act.
Article 50(3) Aliens Act.
Myria, Contact meeting, 16 September 2020, available in French at: https://bit.ly/3sE592s
Articles 51/3-51/10 Aliens Act; Articles 10 and 15-17 Royal Decree on Immigration Office Procedure.