Author
Every unaccompanied child who applies for asylum or is otherwise detected on the territory or at the border has to be referred to the Guardianship service at the Ministry of Justice. The so-called Programme Law of 24 December 2002 has established the service and procedures to be followed in such a case.[1]
Once identified as a child, a guardian will be assigned to the child applicant. The guardian represents their pupil in legal acts and is responsible for ensuring that all necessary steps are taken during the unaccompanied child’s stay in Belgium. The guardian has to arrange for the child’s accommodation and ensure that the child receives the necessary medical and psychological care, attends school etc. The guardian has to see to the child’s asylum or other residence procedures, represent and assist the child in these and other legal procedures, and, if necessary, find a lawyer. During an ongoing asylum procedure, it is legally possible to cumulate the specific procedures directed at finding a durable solution for unaccompanied children (family reunification, return or right to reside in Belgium).[2] In practice, the Immigration Office often postpones the specific procedure while awaiting the results of the asylum procedure.
The guardian also has to help in tracing the parents or legal guardians. If that has not been done yet, the guardian can also introduce an asylum application for his or her pupil.[3] It should be noted, however, that a pending asylum procedure in practice could cause other procedures for finding a durable solution to be temporarily suspended until a final decision is taken on the asylum application, since, in that case Belgian authorities are not allowed to contact the authorities of the country of origin to assess whether return or family reunification is possible.
The guardian has to attend the different interviews at the Immigration Office and the CGRS and should inform the child of the decisions taken in his or her regard in an understandable manner and language. In case of an unfavourable decision, the guardian should explain appeal possibilities and request the child to provide arguments. They should also contact the lawyer to prepare the appeal and the social worker in the reception centre to prepare for possible consequences of the decision on the child’s right to reception.[4]
If necessary, a provisional guardian can be appointed immediately upon notice to the Guardianship Service; for instance, when an unaccompanied child is detained, the Guardianship Service’s directing manager or deputy shall take on guardianship.[5]
On 1 December 2022, there were 3,498 guardianships, of which 2,335 were new guardianships since the start of 2022. One guardian can take on several guardianships. On 13 January 2023, 643 guardians were active for the Guardianship Service, out of which:
- 509 guardians on a voluntary basis (79,16%, covering 33,72% of the pupils)
- 91 professional guardians on a self-employed basis (14,15%, covering 39,53% of the pupils)
- 18 professional guardians registered as a private company (2,80%, covering 12,39% of the pupils)
- 25 professional guardians in the context of a work contract (3,89%, covering 14,36% of the pupils)[6]
Due to a shortage of guardians, around 560 unaccompanied minors were on a waiting list in the beginning of 2022, the average waiting time amounts up to 4 months. In October 2022, 1,700 minors were waiting for the appointment of a guardian, the average waiting time amounting to 4 months in Brussels, Wallonia and East-Flanders and even 8 months in the Flemish region Limburg. This is problematic since the appointment of a guardian is required before the minor can undertake certain essential things such as getting access to legal representation and financial aid (“Groeipakket”) and subscribing to a school. The Minister of Justice announced that he wanted to train an additional 60 full-time guardians as a response to this shortage.[7] The Guardianship service indicated that selection processes for new voluntary and professional guardians are ongoing but that it is difficult to find appropriate candidates.[8]
[1] Article 479 Title XIII, Chapter VI of Programme Law of 24 December 2002 (UAM Guardianship Law).
[2] Article 61/15 Aliens Act.
[3] Article 479(9)(12) UAM Guardianship Law.
[4] Article 11 UAM Guardianship Law; 9 Royal Decree Immigration Office Asylum Procedure; Article14 Royal Decree CGRS Procedure; Guardianship Service, General guidelines for guardians of unaccompanied children, 2 December 2013, available in Dutch at: http://bit.ly/2FFW1GG.
[5] Article 479(6) UAM Guardianship Law.
[6] Statistics of the Guardianship Service of 2022, available in Dutch and French at: https://bit.ly/3KgpLIE .
[7] Vrt Nws, Minister Van Quickenborne wants 60 extra guardians for unaccompanied minors to shorten long waiting list, 22 March 2022, http://bit.ly/3MlOA8C.
[8] Myria, Contact meeting 19 October 2022, available in French and Dutch at: https://bit.ly/3ZBF6d7, 50.