Author
Registration
The Immigration Office is the mandated administration of the Minister responsible for the entry to the territory, residence, settlement and removal of foreign nationals in Belgium. It registers applications for international protection, including subsequent applications. It also decides on the application of the Dublin Regulation. If the Immigration Office decides that Belgium is the country responsible for treating the asylum application, it transfers the case to the Office of the Commissioner General for Refugees and Stateless Persons (CGRS).
An asylum application may be made (see for more information: Registration of the asylum application) either:
- on the territory with the Immigration Office, within 8 working days after arrival;[1]
- at the border with the border police, in case the asylum seeker does not dispose of valid travel documents to enter the territory; or
- in a prison with the prison director, or in a closed detention centre with the personnel of the Immigration Office, in case the person is being detained.
The applicant receives an “attestation of presentation” (“bewijs van aanmelding” or ‘attestation de presentation”). The Immigration Office registers the application within 3 working days of the declaration, which can be prolonged up to 10 working days in case of large numbers of asylum seekers applying simultaneously. The applicant then has to lodge the application. This can take place either immediately when the person makes the application or afterwards but no later than 30 days after the presentation of the application; exceptional prolongations may be defined by Royal Decree. Following that stage, the applicant receives a “proof of asylum application” stating that they are a first-time applicant (“Annex 26”) or a subsequent applicant (“Annex 26quinquies”). In practice, since several years, the registration and lodging of the applications take place on the same moment. In most cases, this happens on the same day on which the person presents themselves and makes the application. However, on some days with a high number of applicants and due to capacity issues of the Immigration Office, persons who present themselves (and thus make the application) receive a document to come back on a specific day and time within 3 days (and for a certain period in 2022, within 10 working days) to register and lodge their application[2] (see Limitations to the right to apply for asylum).
First instance procedure
The CGRS is the central administrative authority exclusively responsible for the first instance procedure of examining and granting, refusing and withdrawing refugee and/or subsidiary protection status.
In addition to the regular procedure, the law foresees a number of other procedures:
Prioritised procedure: The CGRS prioritises cases where:
- the applicant is in detention;
- the applicant is in a penitentiary facility;
- a prioritisation request has been issued by the Immigration Office or the Secretary of State for Asylum and Migration; or
- the application is manifestly well-founded.
There is no time limit for taking a decision in these cases.[3]
Accelerated procedure: The CGRS takes a decision within 15 working days – although there are no consequences if the time limit is not respected – where the applicant inter alia: raises issues unrelated to international protection; comes from a safe country of origin; makes an application for the sole purpose of delaying or frustrating return; makes an admissible subsequent application; or poses a threat to national security or public order.[4]
Admissibility procedure: The CGRS decides on the admissibility of the application within 15 working days, 10 working days (subsequent applications) or two working days (subsequent application from detention). It may reject it as inadmissible where the applicant:
- comes from a first country of asylum;
- comes from a safe third country;
- enjoys protection in another EU Member State;
- is a national of an EU Member State;
- makes a subsequent application with no new elements; or
- is a minor dependant who, after a final decision has been taken on the application in their name, lodges a separate application without justification.[5]
Border procedure: Where the applicant is detained in a closed centre located at the border, the CGRS has four weeks to decide on the asylum application. The applicant is admitted to the territory if no decision has been taken within that time limit.
Appeal
An appeal against a negative decision can be lodged before the Council of Alien Law Litigation (CALL), an administrative court competent for handling appeals against all kinds of administrative decisions in the field of migration. These appeals are dealt with by chambers specialised in the field of asylum.
Appeals before the CALL against the decisions of the CGRS in the regular procedure have an automatic suspensive effect and must be lodged within 30 days. The deadline is reduced to 10 days for decisions of inadmissibility and negative decisions in the accelerated procedure, and 5 days for decisions concerning subsequent applications in detention. Appeals generally have automatic suspensive effect, except for some cases concerning subsequent applications.
The CGRS mentions in its negative decisions the delays for appeals and whether they have suspensive effect or not. To this purpose, an additional paragraph was added in the conclusion of the following decisions:
- Decisions taken under an accelerated procedure when the time limit for an appeal is reduced to 10 days. The 10-day period for an appeal in the accelerated procedure is only applicable if the CGRS has taken the decision within 15 working days of receipt of the file. As this information is difficult to access, and the solution adopted so far is not sufficiently clear, it has been decided to include explicit information on appeals in this kind of decisions;
- Decisions declaring the application inadmissible, especially subsequent applications. These decisions include a paragraph on the suspensive nature or not of the appeal, as well as a paragraph mentioning the two periods of appeal that are applicable (10 or 5 days, depending on whether or not the applicant is being detained at the time of their application).[6]
The CALL has no investigative competence and must decide based on all elements in the file presented by the applicant and the CGRS. In accordance with its “full judicial review” competence (jurisdiction en plein contentieux), it may:
- overturn the CGRS decision by granting a protection status;
- confirm the negative decision of the CGRS; or
- annul the decision if it considers essential information is lacking to decide on the appeal and further investigation by the CGRS is needed.
Dublin decisions of the Immigration Office can only be challenged before the CALL by an annulment appeal.
An onward annulment appeal before the Council of State is possible, but only points of law can be litigated at this stage. The appeal before the Council of State has no suspensive effect on decisions to expel or refuse entry, which are issued with, or even before, a negative decision of the CGRS.
Linking asylum and return
A negative decision taken by the CGRS (refusal of international protection) will not automatically include a return decision. A return decision can only be taken by the Immigration Office after the legal time limit to introduce an appeal at the CALL has expired or, in case an appeal is lodged after the CALL has responded negatively. Only in cases concerning a third or further subsequent application, an appeal does not have a suspensive effect and the Immigration Office will be able to take a return decision (annex 13quinquies) immediately after a decision of non-admissibility from the CGRS.
Before issuing a return decision, the Immigration Office needs to check whether a return of the rejected applicant would not violate fundamental rights such as article 3 ECHR and article 8 ECHR. In this regard, the CGRS can include in a refusal decision a “clause of no-removal”: a non-binding advice for the Immigration Office to not return a person to their country of origin because of a potential risk of inhuman treatment in case of return. For example, the CGRS can do this if it excludes a person from international protection or withdraws or revokes a previous decision granting someone international protection.
Mid 2021, a specific cell with 3 legal experts was created within the Immigration Office to verify whether the detention and/or expulsion would violate articles 3 and 8 ECHR (for more information on the ‘article 3 cell’: see Detention on the territory). Figures provided by the Immigration Office show that in 2022, the cell has analysed 2,250 files and has given its advice in 68 cases, of which 3 concerned general questions and 65 were individual cases.[7]
In two decisions in 2022, the Council of State judged that the Immigration Office, when issuing a return decision, needs to explicitly motivate in what way it took into account certain fundamental rights of the person such as the higher interest of the child, the family life and the health situation of the person.[8]
European and Belgian national case law are not yet aligned on the question whether the risk of violation of fundamental rights needs to be determined on the moment the return decision is taken or only on the moment of its execution. The CALL[9] and the Council of State[10] have previously judged that this risk must already be determined when the Immigration Office takes a return decision. The ‘Commission Bossuyt’ (a commission instituted by the secretary of state for asylum and migration with the mission of evaluating the policies on voluntary and forced return of migrants in Belgium) believes that it follows from case law from European courts, the Belgian constitutional court and the will of the Belgian legislator that this risk only needs to be determined on the moment of the execution of a return decision and not on the moment it is issued.[11]
Since June 2021, a newly founded department of ‘Alternatives to Detention’ is responsible for developing alternative measures for detention of persons without residence permit. The most important measure in this regard is the use of “ICAM-coaches” (Individual Case Management Support). These return-coaches provide intensive guidance for return. After receiving an order to leave the territory, a migrant will be invited to a series of interviews, during which their situation will be explained to them and depending on the situation, a trajectory towards a return or other existing procedures will be organised. Attendance is mandatory and failure to cooperate with return procedures or to show up may result in detention. However, there are ongoing discussions about the efficiency of this system, as many people are going to the first interview, but do not continue the trajectory afterwards.[12] Data provided by the Immigration Office show that in 2022, 1,396 adult persons were invited for an ICAM interview, out of which 502 persons were present at the appointment. Six trajectories were started for unaccompanied minors. Between 6 October 2022 and 31 December 2022, 489 persons in irregular stay who were intercepted on the territory by the police received an invitation for an ICAM-interview; 32 were present at the appointment.[13] Applicants for international protection residing in the reception network whose procedure results in a final negative decision (in the context of a Dublin-procedure or after a procedure at the CGRS) and who are designated open return- or Dublin-place will receive ICAM-coaching sessions. If they do not attend the interviews, the Immigration office informs Fedasil, which can then end the reception.[14] In 2022, 834 persons in such open return- and Dublin-places were invited to ICAM coaching, and 81 returned voluntarily. The Immigration Office has reported 52 persons who refused participation to Fedasil. [15] Figures on 2023 are not available yet.
[1] Article 50(1) Aliens Act, Persons who already have a legal stay of more than three months in Belgium must apply for international protection within 8 working days after the termination of stay. Those in Belgium with a legal stay of less than three months must apply for international protection within this legal stay.
[2] Myria, Contact meeting 29 November 2023, available in Dutch and French at: https://tinyurl.com/5hxbermr, 6; Myria, Contact meeting 21 September 2022, available in Dutch and French at: https://tinyurl.com/k98e7dkn, 8 and 9.
[3] Article 57/6(2) Aliens Act.
[4] Article 57/6/1 Aliens Act.
[5] Article 57/6(3) Aliens Act.
[6] CGRS, ‘Addition of clause in some refusal decisions’, 21 February 2019, available at: https://bit.ly/30uGPDd.
[7] Immigration Office, Annual Rapport 2022, available in Dutch at: https://tinyurl.com/mr4xaj3y.
[8] Council of State 9 June 2022, nr. 253.942, available in French at https://bit.ly/3GlIEsz and Council of State 28 March 2022, nr. 253.374, available in Dutch at https://bit.ly/3mcj1Ua.
[9] E.g. CALL 8 March 2018, nr. 200.933; CALL 9 March 2018, nr. 200.976 and 200.977; CALL 5 September 2018, nr. 208.785; CALL 12 October 2018, nr. 210.906; to be consulted on the website of the CALL: https://www.rvv-cce.be/nl/arr
[10] E.g. Council of State (11th Chamber), 28 September 2017, nr. 239.259, p. 5; Council of State (11th Chamber), 8 February 2018, nr. 240.691, p. 9; Council of State (14th Chamber), 29 May 2018, nr. 241.623, points 7 and 8; Council of State (14th Chamber), 29 May 2018, nr. 241.625, points 8 and 9;
[11] Final report of the Commission for the evaluation of the policy concerning voluntary and forced return of migrants, 15 September 2020, available in Dutch at https://bit.ly/3YEUTGR, p. 25 etc.
[12] Chamber of representatives, Written question and response n° 55-824, Bulletin n°: B104 Tomas Roggeman 28 February 2023, available at: https://bit.ly/4azCK3L.
[13] Immigration Office, Activity report 2022, available in French at https://tinyurl.com/mr2f8pvz, 62.
[14] Article 4 Reception Act of 12 January 2007, available in French at: https://bit.ly/43CpLvz.
[15] Office des étrangers, Rapport d’activités 2022, available at: https://bit.ly/3TCCTMU, 66.