Identification

Belgium

Country Report: Identification Last updated: 08/04/22

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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 contains.

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 (non-accompanied) 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, which is often used in practice to indicate if there are urgent needs, e.g. medical needs. For the asylum seekers concerned, the process of registration will be faster and certain reception centres, such as emergency centres, won’t be assigned to them.

Similarly, at the CGRS level, there are few specific provisions as to the screening, processing and assessing of vulnerabilities of asylum seekers. There is a general obligation to take into consideration the individual situation and personal circumstances of the asylum seeker, in particular the acts of persecution or serious harm already undergone, which could be considered a sort of specific vulnerability.[5] In case of a gender-related claim, one can oppose to be interviewed by a protection officer from the other sex or with the assistance of an interpreter from the other sex.[6] Children, whether unaccompanied or accompanied, 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 over 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 guardian during interviews, while 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 EASO training module on Interviewing Vulnerable Persons, assembles all gender-related asylum applications,[9] including applications based on sexual orientation or gender identity (LGBTI), as well as those applications concerning genital mutilation (FGM), honour retaliation, forced marriages and partner violence or sexual abuse. Its main task is to guarantee an equal treatment of those asylum applications;[10]
  • 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 EASO training module on Interviewing Children;[11]

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 aiming at raising awareness and providing guidance on issues related to gender‐based violence, physical and sexual violence, as well as female genital mutilation and discrimination against transgender people.[12]

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. The service has to control first the identity of the person who declares or is presumed to be below 18 years of age.

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.[13] During the reception crisis in December 2021, 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.[14]

Age assessment in Belgium consist of scans of a person’s teeth, wrist and clavicle. These scans allow to determine the developmental stages of a person’s bones and teeth. Thus, when the age of the applicant is unknown, it is estimated by comparing their development stage to that of persons in the reference study population.[15] Following critiques around the accuracy of the medical test to establish the age of non-Western children by the Order of Physicians,[16] a margin of error of 2 years is taken into account. This means that only a self-declared child who is 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 results of the medical examination 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, which means that 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.[17]

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.[18] Despite these judgements, it still occurs that the Guardianship Service does not automatically uses the lowest age as the one binding for the decision. If this happens, the Council of state suspends the decision.[19]

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.[20] 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 declared to be 13, and the age assessment indicates 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.[21]

On 9 December 2019, the Council of State issued a decision relevant to the contested age assessment procedure.[22] The case concerned a Guinean national who claimed to be a minor. He was subsequently taken into care by the Belgian Guardianship Service as an unaccompanied minor. The Immigration Office later expressed doubts as to the applicant’s age due to his physical appearance and ordered a medical examination, which concluded the age of the applicant 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 it is the overall result that is relevant in age assessment decisions. This decision must be consistent and understandable in light of the individual tests carried out that are used to formulate an overall conclusion. The Court highlighted, inter alia, that an age determination below 18 was not excluded from the present examinations of the applicant’s hands and wrists and that it was thus unclear how the estimated age of 26.7 was determined. It therefore found the statement of reason to be inadequate and annulled the contested decision.

At the end of 2021, the Belgian government announced the creation of an expert committee tasked with the evaluation of the medical methods used during the age assessment and to ensure 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. The Guardianship Service and ministry of Justice are not aware of any other reliable method.[24]

In 2021, 4,881 unaccompanied children were signalled, out of which 92% were boys, and 7% were girls. The top 5 nationalities (among the signalisations) were:

Signalisation of unaccompanied children: 2021
Country Number
Afghanistan 2,468
Morocco 465
Algeria 354
Eritrea 353
Somalia 228
Other nationalities 1013
Total 4,881

Source: Guardianship Service.

Out of a total of 3,269 doubts expressed about the minority of a declared minor, 2,515 age assessments were conducted. Of these assessments, 1,686 age assessments found the declared minor to be over 18 years old.[25]

[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] This includes 12 Gender reference persons in the six geographical sections of the CGRS, the Legal Service and the Documentation Centre (Cedoca).

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

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

[12] EASO, Annual Report on the Situation of Asylum in the European Union 2018, available at: https://bit.ly/2UV3yGj.

[13] Article 7 UAM Guardianship Act.

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

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

[16] 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.

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

[18] 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.

[19] 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

[20] 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.

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

[22] Council of State, Decision No 246340, 9 December 2019, available in French at: https://bit.ly/2Rycbor.

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

[24] Plenary meeting Commission for Justice, 12 January 2022, available in French: https://bit.ly/3GcT4YB.

[25] Information provided by the Guardianship Service, Parliamentary hearing about the situation of non-accompanied minors in Belgium, 11 January 2022, available on video in French at: https://bit.ly/35A1k89

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