Author
General (scope, time limits)
Belgium has 13 external border posts: 6 airports, 6 seaports, and one international train station (Eurostar terminal at Brussels South station). Belgium has no border guard authority as such; the border control is carried out by police officers from the Federal Police, in close cooperation with the Border Control Section at the Immigration Office, as opposed to the control on the territory, being primarily within the competence of the Local Police.
Persons without the required travel documents will be refused entry to the Schengen territory at a border post and will be notified of a decision of refusal of entry to the territory and “refoulement” by the Immigration Office (“Annex 11-ter”).[1] Such persons may submit an asylum application to the border police, which will carry out a first interrogation and send the report to the Border Control Section of the Immigration Office.[2] The “decision of refoulement” is suspended until the decision is taken by the CGRS. The “decision of refoulement” is also suspended during the time limit to appeal and the whole appeal procedure itself.[3]
The CGRS shall examine whether the application:[4]
- Is inadmissible; or
- Cannot be accelerated under the grounds set out in the Accelerated Procedure.[5]
If these grounds do not apply the CGRS will decide that further investigation is necessary, following which the applicant will be admitted to enter the territory.
The asylum application will be examined while the applicant is kept in detention in a closed centre located at the border. The law provides that a person cannot be detained at the border for the sole reason that he or she has made an application for international protection.[6] Nevertheless, UNHCR is concerned that this provision still does not guarantee protection against arbitrary detention. Although it recommended border detention guarantees under Article 74/5 of the Aliens Act to be aligned to those of territorial detention under Article 74/6 (necessity test, evaluation of alternatives to detention etc.), this suggestion has not been taken into account (see Grounds for Detention).
Most of the asylum seekers who apply for asylum at the border are held in a specific detention centre called the “Caricole”, situated near Brussels Airport, but can also be held in a closed centre located on the territory, while in both cases legally not being considered to have formally entered the country yet.[7] Asylum seekers who apply for asylum at the border are systematically detained, without preliminary assessment of their personal circumstances. No exception is made for asylum seekers of certain nationalities or asylum seekers with a vulnerable profile other than being a child or a family with children. Families with children are placed in so-called open housing units, which are more adapted to their specific needs, but which are legally still considered to be border detention centres.[8]
If the asylum application is rejected, the asylum seeker has not yet entered the territory according to the law and may thus be removed from Belgium under the responsibility of the carrier.[9] This brings with it a potential protection gap since the person concerned should lodge an appeal against the “decision of refoulement” that was given to him or her – when he or she applied for asylum upon arrival at the border – long before knowing if, where and under which circumstances this would be executed. When the carrier actually decides to return the person to a transit country, the conformity of that particular executing measure and those particular circumstances with Article 3 ECHR will not have been subjected to any in-merit examination.[10] This was one of the aspects of concern for the ECtHR in the Singh case when it ruled that Belgium lacked an effective remedy in such situations, in violation of Article 13 ECHR.
The first instance procedure for persons applying for asylum at the border detained in a closed centre or open housing unit is the same as the regular procedure, although the law states that applications in detention are treated by priority.[11] If the CGRS has not taken a decision within four weeks, the asylum seeker is admitted to the territory.[12] This does not automatically mean that the asylum seeker will be set free. If a ground for detention is present, he or she can be detained ‘on the territory’ under another detention title.
For the removal of rejected asylum seekers at the border, the Immigration Office applies the Chicago Convention, which implies that rejected asylum seekers have to be returned by the airline company that brought them to Belgium, to the place from where their journey to Belgium commenced or to any other country where they will be admitted entry.[13] In many cases the point of departure (and return) is not the country of origin, and the CGRS does not examine potential persecution or serious harm risks in other countries than the applicant’s country of origin. Not all issues rising under Article 3 ECHR in the country where the person is (forcibly) returned will therefore be scrutinised. This is in particular the case where the country of return is a country other than that of nationality, or also outside the scope of application of the Chicago Convention, where the CGRS has doubts over the person’s nationality or recent stay in that country, making it impossible in their opinion to pronounce itself on the risk of being treated inhumanely there.
In 2021, 178 asylum applications were made at the border.[14]
Personal interview
As is the case in the regular procedure, every asylum seeker receives a personal interview by a protection officer of the CGRS, after the Immigration Office has conducted a short interview for the purpose of the registration of the asylum application and after the asylum seeker has filled in the CGRS questionnaire.
However, as the border procedure concerns asylum applications made from detention and thereby treated by priority, the interview by the CGRS takes place much faster after asylum seekers’ arrival and in the closed centre. This implies that there is little time to prepare and substantiate the asylum application. Most asylum seekers arrive at the border without the necessary documents providing material evidence substantiating their asylum application. Contacts with the outside world from within the closed centre are difficult in the short period of time between the arrival and the personal interview, which constitutes an extra obstacle for obtaining documents and evidence.
Vulnerable asylum seekers also face specific difficulties related to this accelerated asylum procedure. Since no vulnerability assessment takes place before being detained, their vulnerability is not always known to the asylum authorities and as a result may not be taken into account when conducting the interview, assessing the protection needs and taking a decision. However, it is clearly provided that the asylum seeker should fill in a questionnaire specifically intended to determine any specific procedural needs, at the start of the asylum procedure.[15]
Appeal
The appeal at the border is the same as in the regular procedure, except for the much shorter time limits that need to be respected. The time period within which any appeal to the CALL must be lodged while in border detention (including for families in an open housing unit) is only 10 days, or even 5 days in some cases such as a second or further order to leave the territory, instead of 30 calendar days in the regular procedure.[16]
Due to this short deadline, asylum seekers may face serious obstacles in appealing negative decisions. The Immigration Office only notifies a “decision of refoulement” after the CGRS has taken a negative decision on the application.
Legal assistance
In the border procedure, asylum seekers are entitled to free legal aid. In administrative detention, staff have a key role in making access to legal assistance effective for applicants for international protection. Where occupants do not have a lawyer upon arrival in the centre, the prompt submission of an application for designation of a lawyer is essential, especially as the time limits for the various procedures are very short. In practice, it seems that in some closed centres there is a difference in treatment between applicants for international protection considered as “real” by the staff, and foreign nationals that in the course of their procedures are applying for asylum for the first time in the centre or just before repatriation, which are considered as “false”. A lawyer is automatically proposed to the former category, whereas the latter are not systematically offered one, thus rendering access to legal assistance arbitrary and dependent to the staff’s judgement. Moreover, practices concerning the request for the appointment of a lawyer for an applicant for international protection in administrative detention are very different from one detention centre to another. It also appears that no request for appointment is made during weekends, since no social service duty is provided at that time, which is an additional challenge to meet applicable deadlines and represents an obstacle to effective access to legal assistance.[17]
In principle, the same system as described under the regular procedure applies for the appointment of a “pro-Deo” lawyer. However, most bureaus of legal assistance appoint junior trainee lawyers for these types of cases, which means that lawyers who do not have adequate experience handle in some occasions highly technical cases. The contact between asylum seekers and their assigned lawyer is usually very complicated. Lawyers are often not present at the personal interview because asylum seekers cannot get in touch with them prior to the interview, and lawyers tend to not to visit them before the interview to prepare it. When a negative first instance decision is issued by the CGRS, it is not always easy to contact the lawyer over the phone or in person to discuss the reasons given in the decision. Often the lawyer decides that there are no arguments/grounds to lodge an appeal with the CALL and advises the asylum seeker not to lodge an appeal without explaining why. Some bureaus of legal assistance have or intend to create pools and lists of specialised alien law lawyers to be exclusively assigned in this type of cases, but the necessary control and training to effectively guarantee quality legal assistance seems to be lacking.[18]
[1] Article 72 Aliens Decree; Article 52/3(2) Aliens Act. Remarkably, in French the word “refoulement” is used (“terugdrijving” in Dutch), though it does not concern a violation of the non-refoulement principle, since the persons concerned have been allowed to introduce an asylum application and have it examined.
[2] Articles 50-ter and 50 Aliens Act.
[3] Article 39/70 Aliens Act.
[4] Article 57/6/4 Aliens Act.
[5] Except for the ground relating to the failure of the applicant to apply for asylum as soon as possible.
[6] Article 74/5(1)(2) Aliens Act.
[7] For jurisprudence on the fictitious extraterritoriality at the borders, see CBAR-BCHV, Grens, Asiel, Detentie – Belgische wetgeving, Europese en internationale normen, January 2012, available in Dutch at: http://bit.ly/1wNTXfc, 13-15.
[8] Article 74/9 Aliens Act.
[9] Chicago Convention of 7 December 1944 on International Civil Aviation. See on this issue CBAR-BCHV, Het Verdrag van Chicago. Toepassing op asielzoekers aan de grens (The Chicago Convention. Applicability for asylum seekers at the border), June 2013, available in Dutch at: http://bit.ly/1ycTntE.
[10] And it will be too late to appeal against it in an effective way, as also the ECtHR has ruled in Singh v. Belgium.
[11] Article 57/6(2)(1) Aliens Act.
[12] Articles 57/6/4 and 74/5(4)(5) Aliens Act.
[13] Article 74/4 Aliens Act.
[14] Information provided by the Immigration Office, January 2021.
[15] Article 48/9(1) Aliens Act.
[16] Article 39/57 Aliens Act.
[17] UNHCR, Accompagnement juridique des demandeurs de protection internationale en Belgique, September 2019, https://bit.ly/35G2h9s, 34.
[18] In some specific cases the system of exclusively appointing listed lawyers to assist asylum seekers at the border, seems to have attracted some lawyers for purely financial reasons rather than out of expertise or even interest in the subject matter or their client’s case.