Special procedural guarantees

Belgium

Country Report: Special procedural guarantees Last updated: 30/11/20

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Adequate support during the interview

Following the reform that entered into force on 22 March 2018, it is now clearly provided that asylum seekers should, at the start of the asylum procedure, fill in a questionnaire determining any specific procedural needs.[1] In practice, this has led the Immigration Office to ask the asylum seeker whether he or she has medical or psychological problems that might influence the interview, if she/he would like his/her partner to be present during the interview, if she/or he would prefer a male or a female interpreter, as well as asking pregnant asylum seekers about the impact of their pregnancy.[2]

The identification of a special procedural need is usually done through information in the administrative file or is noticed at during the first interview of the applicant to the Immigration Office. Moreover, the applicant may submit a report from a psychologist, psychiatrist or other doctor attesting his or her needs at a later stage. This usually concerns psychological problems as a result of a trauma, in which case a specialised protection officer is called in to conduct an adequate interview.

However, the medical certificate must be comprehensive and the needs must be clearly demonstrated. In one case in 2019 for example, the anxiety attacks, psychological problems and various physical injuries of an applicant were mentioned in a letter from the medical service of a pre-reception arrangement in Brussels as well as in a medical report from Fedasil, but the Immigration Office judged that these were not sufficient to demonstrate that the applicant was not fit to conduct an interview. The CGRS itself confirmed that it did not notice any particular needs during the interview and stated the medical attestations were not recent enough to proof current problems. Similarly, the CALL did not take the medical attestations into account in its judgement.[3]

While certain applicants sometimes mention their special procedural needs during interviews themselves, this is not systematically done byall applicants. Many of them do not know how the procedure will proceed, what questions will be asked and therefore what needs may arise. It is therefore crucial that adequate measures are adopted from the outset so as to prepare, guide and provide information to all applicants, including those who – at first sight – do not seem to have any special needs.

Furthermore, a doctor appointed by the Immigration Office can make recommendations on procedural needs, based on a medical examination. However, this is not mandatory,[4] and the Immigration Office does not keep any statistical information on if and how many times this is applied in practice.

If the procedural needs have not been signalled at the beginning of the asylum procedure, the asylum seeker can still submit a written note to the CGRS describing the elements and circumstances of his or her request.[5] This does not, however, entail an obligation on the part of the CGRS to restart the examination of the asylum application. The Immigration Office and the CGRS remain free to decide if any special procedural needs apply and their decision in itself is not appealable.[6]

The CGRS indicated that the evaluation of the procedural needs is an ongoing process. This means that (i) a first evaluation will take place when the file is transferred to the CGRS, (ii) a second assessment is undertaken during the interview and (iii) another evaluation is conducted at the moment of the decision. Those different evaluations can be conducted both in relatively short or long timelines.[7]

Furthermore, according to the law, reception centres should not only evaluate if special reception needs apply, but should also proactively look for signs of special procedural needs themselves. Where such needs are identified, the centres must inform the Immigration Office and/or the CGRS accordingly, on the condition that the asylum seeker gives its consent.[8]

Specific procedural needs which have been observed in practice include the conduct of the interview in rooms at ground level in cases where the applicant has a physical disability,[9] organising several breaks during the interview, postponing the interview after the birth of a child etc. Overall, when specific procedural needs are identified, the measures mainly consist of hearing the person concerned in an appropriate manner and providing them the opportunity to take a break at any time during the interview. The assistance of an interpreter during a personal interview has also been described in some decisions as a special procedural need. In essence, however, this is not the case since one is entitled to an interpreter during every asylum procedure as described in Article 51/4 of the Aliens Act.

The above examples demonstrate that the CGRS makes efforts to meet certain special procedural needs. However, certain limits have also been noted in practice. In a case of a minor who had reached the age of 18 during the asylum procedure, special assistance was no longer attributed to him.[10]

The law on Guardianship of unaccompanied minors contains general provisions on the protection of unaccompanied minors as well as on the role of the guardian. Based on this law, the Guardianship unit of the Federal Public Service of Justice has established a hotline that operates 24/7 to notify the detection of unaccompanied children, so that the necessary arrangements can be made.[11] For unaccompanied minors the specific procedural needs mainly consists of the assistance of a guardian, an interview conducted by a protection officer trained in child protection and the fact that the CGRS takes into account the age and level of maturity when evaluating the applicants declarations.[12]

In 2018 the CALL also made a step towards a more child-friendly justice. In a judgment of June 2018, the CALL tried to make the decision as understandable as possible by adapting the language of the judgement to the 13-year-old concerned Iraqi boy who had made his own request for international protection.[13] The language of the judgment was adjusted to such an extent that the minor could, even without the assistance of an adult, understand the reasoning of the judgment. By doing so, the CALL acts in accordance with the Guidelines for a Child Friendly judgment of the Council of Europe. The CALL further confirmed that the Immigration Office should apply the UNCRC and respect the best interest of the child.

In gender-related asylum claims the official of the Immigration Office must check if the asylum seeker opposes to a protection officer of the other sex.[14] Women and girls applying for asylum in their own name are also handed over the brochure “Information for women and girls that apply for asylum”, published by the CGRS in 9 languages.[15]

 

Exemption from special procedures

 

If the CGRS decides that the applicant has special procedural needs, in particular in the case of torture, rape or other serious forms of violence, which are incompatible with the accelerated or border procedures, it can decide not to apply those procedures.[16]

Since August 2018 the government has opened family units within the closed centres in which it has detained several families. This is a practice that Belgium had suspended after it was convicted by the ECtHR in the past.[17] Although unaccompanied children are not detained, they are not exempted from the accelerated procedure in the law. However, in practice, the accelerated procedure is not applied to unaccompanied minors.[18]

 


[1]Article 48/9(1) Aliens Act.

[2] Fedasil, Kwetsbare personen met specifieke opvangnoden: definitie, identificatie en zorg, 6 December 2018, available in Dutch at https://bit.ly/2S7NtO5, 25.

[3] CALL, Decision No 217.807, 28 February 2019.

[4]  Article 48/9(2) Aliens Act.

[5]Article 48/9(3) Aliens Act.

[6] Article 48/9(4) Aliens Act.

[7] Myria, Contact meeting, 18 April 2018, available in Dutch at: https://bit.ly/2sIMaXC, para. 56.

[8] Article 22(1/1) Aliens Act.

[9] CALL, Decision No 214.454, 20 December 2018; CALL Decision No 215.972, 30 January 2019; CALL, Decision No 213 350, 30 November 2018.

[10] CALL, Decision No 217807, 28 February 2019.

[11] Program Law (I) (art. 479), 24 December 2002 – Title XIII – Chapter VI : Guardianship of non-accompanied minors

[12] CALL, Decision No 216062, 30 January 2019; CALL, Decision No 215.418, 21 January 2019; CALL, Decision No 214735, 7 January 2019; CALL, Decision No 228246, 30 October 2019.

[13] CALL, 28 June 2018, No 206213, https://bit.ly/2sUvOvj. In its communication on the official website, the CALL makes specific reference to the guidelines for a child friendly justice: https://bit.ly/2CO2oDh.

[14] Article 9 Royal Decree on Immigration Office Procedure.

[15]  CGRS, Women, girls and asylum in Belgium: Information for women and girls who apply for asylum, available at: http://bit.ly/2kvQCpP. The brochure is not otherwise distributed or freely available.

[16] Article 48/9(5) Aliens Act.

[17] ECtHR, Muskhadzhiyeva v. Belgium, Application No 41442/07, Judgment of 19 January 2010.

[18] Myria, Contact meeting, 16 January 2019, available in Dutch at: https://bit.ly/2HeyRXu, para 290.

 

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