Identification

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The Aliens Act defines as vulnerable persons: minors (accompanied and unaccompanied), disabled persons, pregnant women, elderly persons, single parents with minor children and persons having suffered torture, rape or other serious forms of psychological, physical or sexual violence.[1] The Reception Act mentions more profiles, and reflects the non-exhaustive list contained in Article 21 of the recast Reception Conditions Directive, referring to “children, unaccompanied children, single parents with minor children, pregnant women, disabled persons, victims of human trafficking, elderly persons, persons with serious illness, persons suffering from mental disorders and persons having suffered torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation.”[2] However, there is no definition of what the term vulnerability entails.

Screening of vulnerability

Both the Immigration Office and the CGRS have arrangements in place for the identification of vulnerable groups. The Immigration Office has a “Vulnerability Unit” to screen all applicants upon registration on their potential vulnerability. The Vulnerability Unit consists of officials interviewing vulnerable cases who have had specific training and are supposed to be more sensitive to the specific implications vulnerability might have on the interview.[3]

The Immigration Office uses a registration form in which it is indicated if a person is a (unaccompanied) minor, + 65 years old, pregnant, a single woman, LGBTI, a victim of trafficking, victim of violence (physical, sexual, psychological), has children, or has medical or psychological problems. [4] These categories offer a broader definition than the one provided in the Aliens Act and the Reception Act. The form further offers an empty space for additional information, often used in practice to indicate urgent needs, e.g. medical needs. The registration process will be faster for asylum seekers, and certain reception centres, such as emergency centres, will not be assigned to them.

Similarly, at the CGRS level, there are few specific provisions regarding the screening, processing and assessing of vulnerabilities of asylum seekers. There is a general obligation to consider the asylum seeker’s individual situation and personal circumstances, particularly the acts of persecution or serious harm already undergone, which could be regarded as a specific vulnerability.[5] In case of a gender-related claim, one can oppose being interviewed by a protection officer from the other sex or with the assistance of an interpreter from the other sex.[6] Whether unaccompanied or accompanied, children should be interviewed in appropriate circumstances, and their best interests should be decisive in the examination of the asylum application.[7]

Unaccompanied children applying for asylum are handed the brochure “Guide for the unaccompanied Minor who applies for asylum in Belgium”, published by the CGRS in different languages. The Aliens Act also has specific provisions on the procedures for unaccompanied children when they do not apply for asylum. Unaccompanied children should always be accompanied by their guardians during interviews. In contrast, accompanied children who apply separately or who request to be heard by the CGRS during the procedure of their parents should only be accompanied by the lawyer and person of trust during the first interview. If there are more interviews at a later stage, the CGRS can also interview the child alone.[8]

At the CGRS, two vulnerability-orientated units have been established that render support to protection officers dealing with such cases:

• A “Gender Unit” trained following the EUAA module on Gender, Gender Identity & Sexual Orientation helps ensure that gender-related applications for international protection are adequately addressed. Gender-related asylum applications include claims based on sexual orientation, gender identity or sexual characteristics (LGBTI), fear of undergoing Female genital mutilation (FGM), honour crimes, forced marriages, domestic violence, sexual violence;[9]
• A “Minors Unit”, headed by an appointed coordinator, ensures a harmonised approach, information exchange and exchange of best practices. Unaccompanied minors are only interviewed by specially trained protection officers, who follow the EUAA training module on Interviewing Children.[10]

In 2018, important initiatives were undertaken by Belgium regarding information provision to vulnerable applicants for international protection, as updated instructions for national practitioners in the fields of asylum and protection were issued. Specialised trainings were organised, and communication leaflets were published to raise awareness and provide guidance on issues related to gender‐based violence, physical and sexual violence, as well as female genital mutilation and discrimination against transgender people.[11]

Age assessment of unaccompanied children

The Guardianship service has the general mission to streamline a system of tutors (guardians) intended to find a durable solution for unaccompanied children who are not EU citizens in Belgium, whether they apply for asylum or not (see Legal representation of unaccompanied children). The service must first control the identity of the person who declares or is presumed below 18.

If the Guardianship service itself or any other public authority responsible for migration and asylum, such as the Immigration Office, has any doubt about the person concerned being underage, a medical age assessment can be ordered at the expense of the authority applying for it.[12]

During the reception crisis in December 2021 (see Constraints to the right to shelter), Fedasil and the Immigration Office briefly conducted a screening of minors waiting in line at the arrival centre based on physical appearances. If a young man waiting in line did not look like a minor, he was sent to the line of single men resulting in a denial of reception. This practice being in clear violation of the legal framework, it was promptly stopped after an intervention from the Flemish Children’s Rights Commissioner.[13]

Also, in the context of the reception crisis, no age assessments were conducted between 16 October and 13 December 2022. According to the Guardianship Service, asking minors without access to reception to undergo an age assessment was not justified. As a result, these minors were not given access to the reception network and could not dispute the doubt about their minority. In the second week of January 2023, Caritas International Belgium reported that 24 of these minors were gone missing (see also

Age assessment in Belgium consists of scans of a person’s teeth, wrist and clavicle. These scans determine the developmental stages of a person’s bones and teeth. Thus, when the applicant’s age is unknown, it is estimated by comparing their development stage to that of persons in the reference study population.[14] Following critiques around the accuracy of the medical test to establish the age of non-Western children by order of Physicians,[15] a margin of error of 2 years is considered. This means that only a self-declared child tested to be 20 years of age or above will be registered as an adult.

An applicant may challenge an age assessment before the Council of State through a non-suspensive appeal. However, the court is not competent to review elements such as the reliability of the medical examination results or the evidentiary value of identity documents. It can only check if the Immigration Office had the right to conduct an age assessment according to the law. This procedure is lengthy, often taking longer than a year, so the person often becomes an adult before the Council of State has reached a final decision. Accordingly, the procedure is not an effective appeal and has been met with criticism.[16]

In 2015, the Council of State had to reaffirm, by suspending several Guardianship Services’ decisions, the legal provision that of the different outcomes of the different subtests of which such an age assessment consists, the one that indicates the lowest age is the one binding for the Guardianship Service’s decision.[17] Despite these judgements, it still occurs that the Guardianship Service does not automatically use the lowest age as the one binding for the decision. If this happens, the Council of State suspends the decision.[18]

The Council of State further decided that the Guardianship Service is not competent to assign a date of birth to the person who is declared a minor following an age test but for whom the margin of error of the age test results in a higher or lower age than the age declared.[19] The Guardianship Service stated it would no longer disregard the declared age of a minor, even if estimates as higher or lower than the margin of error. However, the Guardianship Service indicated that the difference between the declared age and the minimum age indicated by the margin of error needs to be reasonable. If a minor is declared 13, and the age assessment suggests that the minor is 17, this is not considered a reasonable difference. In such a case, the Guardianship Service might still use the age indicated by the age assessment.[20]

On 9 December 2019, the Council of State issued a decision relevant to the contested age assessment procedure.[21] The case concerned a Guinean national who claimed to be a minor. The Belgian Guardianship Service subsequently took him into care as an unaccompanied minor. The Immigration Office later expressed doubts about the applicant’s age due to his physical appearance and ordered a medical examination, which concluded the applicant’s age to be 26.7 years with a deviation of 2.6 years. The applicant contested the decision arguing that the examiner had offered only a general conclusion and it was unclear how the estimated age was determined. He argued, inter alia, that a hand and wrist examination found he could be aged a minimum of 17.5 years and that the dental examinations were not conclusive. It was argued that the benefit of the doubt should therefore have been applied in this decision.

The Council of State noted that the overall result is relevant in age assessment decisions. This decision must be consistent and understandable in light of the different tests carried out. The Council highlighted, inter alia, that an age determination below 18 was not excluded from the present examinations of the applicant’s hands and wrists. It was thus unclear how the estimated age of 26.7 was determined. It, therefore, found the motivation of the decision to be inadequate and annulled the contested decision. The Council of State confirmed this judgment in a more recent arrest on 9 November 2021.[22]

At the end of 2021, the Belgian government announced the creation of an expert committee tasked with evaluating the medical methods used during the age assessment and ensuring all the hospitals conducting these medical methods use the same methodology.[23] The committee will look into:

• External circumstances influencing chronological age;
• Recurring critiques on the medical methods in use;
• Recurring critiques on the scientific reference groups used to develop these medical methods;
• Improving the manner how the results are described in the age assessment decision;
• Improving quality control;
• Practical implications of the above findings.

The expert committee will not look into alternative, holistic methods to assess age. In 2022, the expert committee published 17 proposals on optimising the methods used during age assessment and how to come to a uniform age assessment procedure.[24]

In 2022, 6,434 unaccompanied children were signalled, compared to 4,881 in 2021. In 2022, 84% of the signalisation concerned boys, compared to 15% girls. The top 5 nationalities (among the signalisation) were:

Source: Guardianship Service[25]

In 3,063 cases (almost half of the signalisations), a doubt was expressed about the minority of the declared minor. In 2,697 cases, an age assessment was conducted. Of these assessments, 1,788 age assessments found the declared minor to be over 18 years old.[26]

[1] Article 1(12) Aliens Act

[2] Article 36 Reception Act.

[3] CBAR-BCHV, Trauma, geloofwaardigheid en bewijs in de asielprocedure’ (Trauma, credibility and proof in the asylum procedure), August 2014, available in Dutch at: http://bit.ly/1MiiYbk, 66-69.

[4] Fedasil, Study into vulnerable persons with specific reception needs, February 2017, available at: http://bit.ly/2jA2Yhj.

[5] Article 27 Royal Decree on CGRS Procedure.

[6] Article 15 Royal Decree on CGRS Procedure.

[7] Article 14 Royal Decree on CGRS Procedure. On this issue, see also : CBAR-BCHV, L’enfant dans l’asile: prise en compte de sa vulnérabilité et son intérêt supérieur, June 2013, available in French at: http://bit.ly/1RYkyTJ.

[8] Article 57/1(3) Aliens Act.

[9] Information provided by the CGRS, 21 December 2022.

[10] Information provided by the CGRS, 24 August 2017.

[11] EASO, Annual Report on the Situation of Asylum in the European Union 2018, available at: https://bit.ly/2UV3yGj. No updates on more recent trainings were provided.

[12] Article 7 UAM Guardianship Act.

[13] Flemish Children’s Rights Commissioner, Standpunt Opvangcrisis: dringend oplossingen voor niet-begeleide minderjarige vreemdelingen, available in Dutch at: https://bit.ly/3AOJc68.

[14] Myria, Contact Meeting September: answer provided by Guardianship Service, 15 September 2021, available in French and Dutch at: https://bit.ly/3AMqXOR.

[15] Order of Physicians, Age assessment tests for foreign unaccompanied minors, 20 February 2010, available in French at: http://bit.ly/1MBTGpj and Dutch at: http://bit.ly/1HiSvex.

[16] Platform Kinderen op de vlucht, Leeftijdsschatting van NBMV in vraag: probleemstelling, analyse en aanbevelingen, September 2017, available in Dutch at: http://bit.ly/2GyEJsd.

[17] See e.g. Council of State, Decision No 231491, 9 June 2015, available in French at: http://bit.ly/1XdO2xs; Decision No 232635, 20 October 2015, available in Dutch.

[18] Council of State, Decision No 252072, 9 November 2021, available in French at: https://bit.ly/3ueqhQP; Decision No 251.629, 28 September 2021, available in French at: https://bit.ly/3HmfoA6. 

[19] Council of State, Decision No 242.623, 11 October 2018, available in French at: https://bit.ly/2FQBcI0; Decision No 244.052, 28 March 2019, available in French at: https://bit.ly/348X1R0.

[20] Myria, Contact Meeting, 20 February 2019, available in French at: https://bit.ly/34qPoFA.

[21] Council of State, Decision No 246.340, 9 December 2019, available in French at: https://bit.ly/2Rycbor.

[22] Council of State, Decision No 252.072, 9 November 2021, available in French at: https://bit.ly/3Kgpfdp.

[23] Policy note on asylum and migration, 3 November 2021, available in French: https://bit.ly/3rKjJH4.

[24] De Tobel, J. & Thevissen, P., Adviesraad medische leeftijdsonderzoeken, 30 juni 2022. 

[25] Statistics of the Guardianship Service of 2022, available in Dutch and French at: https://bit.ly/3KgpLIE, p. 4.

[26] Statistics of the Guardianship Service of 2022, available in Dutch and French at: https://bit.ly/3KgpLIE, p. 8.