Special procedural guarantees

Belgium

Country Report: Special procedural guarantees Last updated: 16/05/24

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Adequate support during the interview

The identification of a special procedural need is done on the basis of information in the administrative file, the questionnaire on specific procedural needs and all other elements and documents presented by the applicant. The Immigration Office and the CGRS indicate that the evaluation of procedural needs is an ongoing process and tries to determine procedural needs as soon as possible and offer special supporting measures if needed. Throughout the entire procedure, the applicant can make their special procedural needs known.

At the start of the asylum procedure, asylum seekers are informed about the possibility to indicate specific procedural needs and have to fill in a questionnaire determining any specific procedural needs.[1] Through this questionnaire, applicants are requested to provide, among other things, information on medical or psychological problems that might influence the interview, if they would like their partner to be present during the interview, if they he would prefer a male or a female interpreter, as well as asking pregnant asylum seekers about the impact of their pregnancy.[2]

 Moreover, the applicant may submit a report from a psychologist, psychiatrist or other doctor attesting to their needs later. This usually concerns psychological problems resulting from 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, an applicant’s anxiety attacks, psychological problems and various physical injuries were mentioned in a letter from the medical service of a pre-reception arrangement in Brussels and in a medical report from Fedasil. However, the Immigration Office judged these were insufficient to demonstrate that the applicant was not fit to conduct an interview. The CGRS confirmed that it did not notice any particular needs during the interview and stated the medical attestations were not recent enough to prove current problems. Similarly, the CALL did not consider the medical attestations in its judgement.[3]

While certain applicants mention the reasons to be considered in need of special procedure during interviews and although they receive information about this on the moment of registration of their asylum application, certain applicants – especially extremely vulnerable persons – are not capable of communicating their needs correctly; some are even not capable of identifying these needs for themselves. Many do not know how the procedure will continue, what questions will be asked, and what needs may arise. It is, therefore, crucial that adequate measures are adopted from the outset to prepare, guide and provide information to all applicants, including those who – at first sight – do not seem to have any special needs or do not indicate to have any.

Furthermore, a doctor appointed by the Immigration Office can recommend procedural needs based on a medical examination. However, this is not mandatory,[4] and the Immigration Office does not provide statistical information on if and how often 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 their request.[5] However, this does not 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 is not appealable.[6]

On the level of the CGRS, (i) a first evaluation will take place when the file is transferred to the CGRS, (ii) a second assessment will be 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 evaluate if special reception needs apply and 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 consents.[8]

Specific procedural needs that have been observed in practice include the need to conduct the interview in rooms at ground level in cases where the applicant has a physical disability,[9] to organise several breaks during the interview, to postpone 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 with 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 practice, however, this is not the case since one is entitled to an interpreter during every asylum procedure described in Article 51/4 of the Aliens Act.

The above examples demonstrate that the CGRS makes efforts to meet specific special procedural needs. However, certain limits have been noted in practice. As an example, in the 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 and 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 consist of a guardian’s assistance, an interview conducted by a protection officer trained in child protection and the fact that the CGRS considers the age and level of maturity when evaluating the applicant’s declarations.[12]

Since 2018, the CALL is taking steps 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 under 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 child’s best interest. In 2023, the CALL decided to create a hearing room specifically for minor applicants. This measure is taken on the basis of recommendations by a doctoral researcher who is currently conducting research on children’s rights in the asylum appeal procedures.[14]

In gender-related asylum claims, the official of the Immigration Office must check if the asylum seeker opposes being assigned a protection officer of the other sex.[15] Women and girls applying for asylum in their own name are also handed in a brochure called “Information for women and girls that apply for asylum”, published by the CGRS in 9 languages.[16]

 

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.[17]

Since August 2018, the government has opened family units within the closed centres in which several families were detained, despite the practice having previously been suspended after the ECtHR condemned Belgium.[18] The current government has agreed that it can no longer detain children in closed centres, as a matter of principle. New, alternative measures will be developed to avoid abusing this measure to make a return impossible.[19] So far, this agreement has not been codified into law. This is part of the Migration Deal and the pro-active return policy legislation.

Although unaccompanied children are not detained, they are not exempted from the accelerated procedure in the law. However, the accelerated procedure is not applied to unaccompanied children.[20]

 

 

 

[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; information confirmed by the CGRS in December 2022.

[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 unaccompanied 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] CALL, ‘Doctoral research at the CALL’, 5 October 2021, https://tinyurl.com/3fbzx2dd and CALL Activity report 2023, available in Dutch and French at: https://tinyurl.com/3rec62sr.

[15] Article 8 Royal Decree on Immigration Office Procedure.

[16] 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.

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

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

[19] Chamber of Representatives, Policy Note on asylum and migration, 4 November 2020, available in Dutch and French, available at: https://bit.ly/3sJdgMd, 34. 

[20] 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