Short overview of the asylum procedure

Belgium

Country Report: Short overview of the asylum procedure Last updated: 30/11/20

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An asylum application may be made either:

(a) on the territory with the Immigration Office, within 8 working days after arrival;[1]

(b) at the border, in case the asylum seeker does not dispose of valid travel documents to enter the territory with the border police; or

(c) from a detention centre, in case the person is already being detained for the purpose of removal.

The applicant receives a “certificate of declaration” (attestation de déclaration). The Immigration Office registers the application within 3 working days of the notification, 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 following the notification but no later than 30 days after the application has been made; exceptional prolongations may be defined by Royal Decree. Following that stage, the applicant receives a “proof of asylum application” stating that he or she is a first-time applicant (“Annex 26”) or a subsequent applicant (“Annex 26-quinquies”).

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 also has the competence to register asylum applications and decides on the application of the Dublin Regulation. The Immigration Office also only registers subsequent applications and transfers them to the Office of the Commissioner General for Refugees and Stateless Persons (CGRS).[2]

 

First instance procedure

 

As mentioned above, the CGRS is the central administrative authority exclusively responsible for the first instance procedure in terms of examining and granting, refusing and withdrawing of 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:

(a) the applicant is in detention;

(b) the applicant is in a penitentiary facility;

(c) a prioritisation request has been issued by the Immigration Office or the Secretary of State for Asylum and Migration; or

(d) 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:

(a) comes from a first country of asylum;

(b) comes from a safe third country;

(c) enjoys protection in another EU Member State;

(d) is a national of an EU Member State;

(e) makes a subsequent application with no new elements; or

(f) is a minor dependant who, after a final decision has been taken on the application in his or her 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 automatic suspensive effect and must be lodged within 30 days. The deadline is reduced to 10 days in inadmissible applications and negative decisions in the accelerated procedure, and 5 days concerning subsequent applications in detention. Appeals generally have automatic suspensive effect, with the exception of some cases concerning subsequent applications.

In the past the CGRS committed to communicate the applicable appeal deadlines but, since the entry into force of the law in 2018, it is unable to do so due to the existing workload.[6] The decision received by the asylum seeker does not mention which specific delay is applicable to his or her case. The decision only makes reference to the general provision (Article 39/57 of the Aliens Act). The CGRS announced in January 2019 that it would change its practice by mentioning again which delay is applicable and if the appeal has a suspensive effect.

Since February 2019, the CGRS mentions in its negative decisions the deadlines for appeals and whether they have suspensive effect or not. Therefore, 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 decisions.

 

  • Decisions declaring the application inadmissible, especially subsequent applications. These decisions now 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, depending on whether or not the applicant is being detained at the time of his or her application. Indeed, both the applicant and his or her counsel know whether or not this is the case. Both time limits will be mentioned in simplified language to make this information more accessible.[7]

In practice, lawyers have reported that the mentioning of the correct deadline remains problematic.

The CALL has no investigative competence and has to take a decision based on all elements in the file presented by the applicant and the CGRS. In accordance with its “full judicial review” (en pleine jurisdiction) competence, it may:

(a) overturn the CGRS decision by granting a protection status;

(b) confirm the negative decision of the CGRS; or

(c) annul the decision if it considers essential information is lacking in order 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.

 


[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]  Articles 57/6/2 and 51/8 Aliens Act.

[3]  Article 57/6(2) Aliens Act.

[4]   Article 57/6/1 Aliens Act.

[5]   Article 57/6(3) Aliens Act.

[6]   Myria, Contact meeting, 19 September 2018, available in Dutch at: https://bit.ly/2MvKKc8,  para 12.

[7]  CGRS, ‘Addition of clause in some refusal decisions’, 21 February 2019, available at: https://bit.ly/30uGPDd.

 

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