Dublin

Belgium

Country Report: Dublin Last updated: 16/05/24

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General

Dublin statistics: 1 January – 31 December of year 2023[1]

Outgoing procedure Incoming procedure
Take Back Requests Take Charge Requests Transfers Take Back Requests Take Charge Request Transfers
Total 9,037 5,018 1.239 Total 2,956 581 556
Italy 612 2,876 0 France 1,375 277 234
Germany 2,112 187 388 Germany 863 128 135
France 1,184 548 193 The Netherlands 382 24 49
Croatia 1,423 255 94 Switzerland 120 24 49
Austria 854 10 171 Austria 47 8 12

 

Nationalities of persons subject to Dublin requests and transfers in 2023
Outgoing procedure Incoming procedure
Take Back Requests Take Charge Requests Transfers Take Back Requests Take Charge Request Transfers
Total 9,037 5,018 1,239 Total 2,956 581 556
Afghanistan 1,544 220 255 Afghanistan 1,147 33 172
Eritrea 314 929 26 Moldavia 236 0 25
Syria 648 291 37 Congo 31 122 20
Guinea 295 524 35 Georgia 136 4 19
Palestine 451 322 32 Somalia 109 18 19

In 2023, the total number of outgoing take-charge and take back-requests was 14,079 (4,991 take-charge and 8,618 take-back requests). 11,658 of these requests were based on a hit from the Eurodac database. None were for dependency reasons and three for humanitarian reasons to Germany, Ireland and Sweden.[2] 9,607 requests were accepted out of the total number of requests, out which two were for humanitarian reasons. The difference between the number of requests and the number of agreements is partly because the Immigration Office often sends requests to several countries simultaneously for a single person.

A total of 1,241 persons were transferred from Belgium to other Member States in 2023. The top 3 most transferred nationalities are Afghanistan (255 persons), Eritrea (26) and Syria (37). 1,174 of these transfers were carried out within six months, 56 within 12 months, and 11 within 18 months after the acceptance by the other Member State. The average duration of the Dublin procedure in 2023 (calculated from the day of the outgoing request until the moment of the effective transfer) was 74 calendar days.[3]

In 2023, there was a total of 3,539 incoming take charge and take back requests (581 take charge requests, and 2,958 take back requests), of which four for dependency reasons[4] and 27 for humanitarian reasons.[5] Out of the total of incoming requests, 2,338 were accepted, one for dependency reasons and four for humanitarian reasons. 556 persons were effectively transferred to Belgium.

According to available statistics,[6] the Immigration Office accepted 4,275 persons under the sovereignty clause.[7] In 2023, Belgium further became responsible “by default” for 4,759 persons out of which 4,735 persons were not transferred in time;[8] and 24 (16 for Greece, 1 for Croatia, 5 for Italy and 2 for Hungary) were not transferred due to deficiencies in the asylum or reception system which could lead to inhumane and degrading treatment in another Member State.[9]

Application of the Dublin criteria[10]

  Outgoing procedure Incoming Procedure
Number of requests Agreements Transfers Number of requests Agreements Transfers
Total 14,079 9,607 1,241 3,539 2,338 556
Family Reasons[11] 53 17 0 90 18 33
Documentation and legal entry reasons[12] 1,949 1,391 63 426 317 84
Art. 15 0 0 0 0 0 0
Art. 13.1 3,011 2,349 14 5 1 0
Art. 13.2 14 7         1 29 7 1
Art. 16 0 0 0 4 1 0
Art. 17 3 2 2 27 4 2
Art. 20.5 1,095 1,099 92 1 0 0
Art. 18.1.b 5,316 2,547 511 1,772 872 193
Art. 18.1.c 370 365 99 250 243 53
Art. 18.1.d 2,268 1,830 459 935 875 190

 

Since 2021, the Immigration Office has provided statistics about the application of the Dublin criteria.[13] This overview does not give a breakdown of the Dublin criteria per article. It instead provides a more general breakdown of the outgoing and incoming take charge and take back requests. Information about a more detailed breakdown of the Dublin criteria per article, can be obtained through Parliamentary questions and questions during the monthly contact meetings, of which the reports are published online.[14] The Aliens Act uses the term “European regulation” to refer to the Dublin III Regulation criteria for determining the responsible Member State.[15]

In 2023 the Immigration Office sent 53 take charge requests for family reasons, 50 based on article 11, and three based on article 8. 17 of these requests were accepted based on article 11. There were no outgoing transfers based on family reasons in 2023.[16]

In 2023 the Immigration Office received 90 take charge requests for family reasons, out of which 46 were based on article 8, five were based on article 9, 13 were based on article 10 and 26 were based on article 11 of the Dublin Regulation. The Immigration Office accepted 18 of these requests. 14 based on article 8, one on article 10 and three on article 11. There were 32 incoming transfers based on family reasons, with 28 based on article 8, three based on article 9 and one based on article 10. The majority of these incoming transfers came from Cyprus (13) and Greece (14).[17] Since the number of implemented transfers based on family reasons is higher than the number of agreements based on family reasons in 2023, some transfers were based on agreements given before 2023.

The dependent persons and discretionary clauses

Settled case law indicates that the Immigration Office, as confirmed by the CALL, strictly applies the dependency clause of Article 16 of the Dublin Regulation.[18] However, this observation does not consider the decisions in which the Immigration Office declared itself responsible for applications. Exchanges with lawyers and practitioners indicate that information exchange on dependency and the situation in the other Member State between the Immigration Office and the lawyer prior to the decision in a specific case may lead to Belgium declaring itself responsible. However, it is impossible for the lawyers to know which element is decisive in each case. They will often invoke other elements, such as detention and reception conditions, guarantees in the asylum procedure and access to an effective remedy in the responsible state, and aspects of dependency.

The threshold to prove dependency as defined under article 16 is rather high. For example, a medical attestation concerning depression is not enough to prove dependency if it does not mention that the presence of a particular family member is necessary for recovery.[19] Likewise, mere cash payments to someone who still works in the home country are not enough to prove dependency, nor is proof of the intention to care for a family member during the asylum procedure or living with said family member.[20] According to the CALL, there have to be indications of a ‘more than usual relationship of dependency’, which has to be proven by substantial evidence.[21] Lastly, the fact that a family member, in light of whom dependency should be established, applied for a living wage, proves a fortiori that there is no dependency vis-à-vis the applicant.[22]

While the “sovereignty clause” of Article 17(1) of the Regulation is mentioned in Article 51/5(2) of the Aliens Act, the “protection clause” of Article 3(2) and the “humanitarian clause” of Article 17(2) are not. So far, it is unclear when the Immigration Office declares itself responsible or applies the “sovereignty clause” since no decision is taken, but the file is immediately transferred to the CGRS.

The criteria for applying the clauses are unclear, and no specific statistics are publicly available on their use. Since the M.S.S. v. Belgium and Greece judgment of the ECtHR, detention and reception conditions, guarantees in the asylum procedure, and access to an effective remedy in the responsible state seem to be considered in some cases when deciding whether or not to apply the “protection clause”. Since the C.K. and others v. Slovenia judgment of the CJEU,[23] the CALL pays particular attention to the risk of inhuman and/or degrading treatment that a transfer in itself might entail for people with severe mental or physical illnesses, even if the responsible Member State does not demonstrate systematic flaws.[24] The determining element is whether the transfer would deteriorate the person’s state of health in a significant and permanent manner. Case law analysis shows that CALL uses a very strict standard concerning the nature of the illness and the evidence thereof.[25] Heavy reliance is placed on medical attestations for both the state of health and the impact of a transfer thereon.[26]

 

Procedure

The Dublin procedure is laid down in the Aliens Law under articles 51/5 and 51/5/1. The Aliens Law refers to ‘the European Regulation’ for further details.

All asylum seekers are fingerprinted and checked in the Eurodac and Visa Information System databases after making their asylum application with the Immigration Office.[27] In case they refuse to be fingerprinted, their claim may be processed under the Accelerated Procedure.[28] In 2019, the CGRS stated that it did not use this legal possibility in practice and it did not keep statistics of these cases.[29] Nevertheless, refusal to get fingerprinted could be interpreted as a refusal to cooperate with the authorities, which could result in detention.

Based on the fingerprints and any other relevant information, the Immigration Office then determines which EU state is responsible for examining the asylum application based on the criteria of the Dublin III Regulation. This is a preliminary procedure to decide whether the file must be transferred to the CGRS. In case Belgium is deemed the responsible state, the asylum seekers’ file is transferred to the CGRS, and it is further mentioned on the registration proof of the asylum application.

If another member state might be responsible, the Immigration Office will send a take back or take-charge request. The Immigration Office has clarified that, in line with the CJEU ruling in Mengesteab,[30] the time limit for issuing a Dublin request starts running from the moment an asylum seeker makes an application at the Immigration Office and not from the moment they are issued a ‘proof of asylum application’ (‘Annex 26’).[31]

A decision to transfer following an implicit or explicit agreement to take back or to take charge of an asylum applicant is delivered in a written decision containing the reasons for the decision in person (the so-called ‘Annex 26quater’, or ‘Annex 25quater’ in case of a border procedure). The asylum seeker’s lawyer does not automatically receive a copy of the decision sent to the asylum seeker.[32]

Individualised guarantees

The Immigration Office does not systematically ask for individualised guarantees for vulnerable asylum applicants. However, it sometimes requests guarantees when the continuity of an asylum seeker’s medical treatment has to be ensured in the country of destination. In the past, the CALL has overruled the Immigration Office’s practice in some cases, without this having a generalised effect on it.[33]

In 2022, some decisions of the Immigration Office to transfer an asylum applicant with a specific vulnerability to Croatia were suspended by the CALL, because no guarantees concerning the possibility to reintroduce an asylum application had been demanded beforehand. [34] In November 2022, the Croatian Ministry of Internal Affairs sent out a communication regarding its willingness to correctly apply the provisions of the Dublin III Regulation and to guarantee the possibility for applicants transferred under the Dublin III Regulation to reapply for international protection. However, the CALL ruled that this communication from the Croatian Ministry of Internal Affairs does not provide the same guarantee as individualised guarantees, which means that this communication is not sufficient to exclude any risk of a violation of Article 3 ECHR.[35] In order to overcome this risk, the Immigration Office systematically requests individual guarantees from the Croatian authorities. In such a case, the CALL does not suspend the transfer.[36]

Transfers and the return procedure

When receiving their Dublin decision, the applicant is informed about the procedure to organise a transfer to the responsible member state. The applicant is expected to cooperate with the transfer under the ‘voluntary return procedure’. If someone does not cooperate, this could be considered as ‘absconding’ which is a criterion that can lead to detention under the ‘forced return procedure’ (see Grounds for Detention).

During the ‘voluntary return procedure’, the asylum seeker should stay at the disposal of the Immigration Office for the execution of the transfer. The Immigration Office has 6 months after the agreement of the responsible state to execute the transfer. In application of article 29(1) Dublin III regulation, the 6 months transfer period is suspended when the CALL suspends the transfer in the context of an emergency appeal in view of suspension of the execution of the transfer decision (see Dublin: Appeal).

In 2021, the Immigration Office introduced a new practice in the voluntary return procedure, as an alternative to detention, called the ‘ICAM-procedure’[37] to increase the return rate. When someone receives a Dublin decision, this person must actively cooperate with the voluntary return procedure. Someone residing in the reception network can be asked to move to an ‘open return centre’. In this open return centre, the Immigration Office will organise interviews with the applicant concerning the voluntary return procedure. If the applicant declines the transfer to the open return centre, the right to reception can be suspended. In this case, the applicant will reside outside of the reception network.

Someone residing on a private address or outside of an open return place will be invited for a first interview with an ‘ICAM-coach’. The voluntary return to the responsible Member State will be discussed during this interview. If the applicant does not attend this interview, this might result in the withdrawal of material aid by Fedasil. If the applicant does attend this interview but indicates that they do not wish to collaborate with the voluntary return procedure, they will be invited on a later date to discuss the voluntary return procedure once more. Suppose the applicant does not attend this second interview or does not wish to collaborate with the voluntary return procedure. In that case, this might result in the withdrawal of material aid by Fedasil as well. If an applicant decides not to collaborate with the ‘ICAM-procedure’, they could be re-invited by the Immigration Office, and be taken in detention with the aim of removal to the responsible member state.

If the asylum seeker does not stay at the disposal of the Immigration Office for the execution of transfer, they can be considered to be absconding. In that case, the transfer period can be extended from 6 months up to 18 months. The decision to extend the transfer deadline must be individually motivated in writing to make effective judicial review possible.[38] Currently, the Immigration Office and the CALL refer to the CJEU’s Jawo judgment of 19 March 2019,[39] and its interpretation of ‘absconding’ in article 29(2) Dublin III Regulation. According to this interpretation by the CALL, the concept of absconding in this context requires the establishment of both a material and an intentional aspect. The material aspect can be proven whenever the applicant has not communicated a place of residence to the Immigration Office or the applicant cannot be found at this address if a check is conducted. As for the intentional element, the mere circumstance that the applicant indicates that they will not voluntarily comply with the transfer decision is not sufficient to consider that someone is absconding.[40] An analysis of the case law of the CALL on this concept of ‘absconding’, indicates that the CALL allows to conclude that the applicant has absconded  in mainly two types of cases: (1) the applicant did not provide the Immigration Office with their latest address or (2) the applicant could not be found by the police at the latest known address.

In the context of the ICAM procedure, the Immigration Office considered applicants to be absconding when they did not show up for an ICAM interview, or when they expressed during the ICAM interview that they did not want to cooperate with the voluntary return. The CALL has ruled against this policy in several cases.[41] The CALL argues that when an applicant does not give voluntary effect to the transfer decision, this element is insufficient to consider that person as absconding. It refers to its interpretation of the Jawo judgement, and the required material element to be considered as absconding. In a subsequent ruling, the CALL confirmed the above case-law in the case where an applicant had expressed doubts about voluntary return during a first interview with the ‘ICAM-coach’, and subsequently did not attend the second interview with the ‘ICAM-coach’.[42] The Immigration Office concluded from this situation that the applicant deliberately ensured that he remained out of the reach of the authorities responsible for the transfer to prevent the transfer or make the transfer more difficult. The CALL stated that it cannot be concluded from this situation that the applicant deliberately avoided the transfer, since the required material element (Jawo judgment) is not fulfilled in this case. Indeed, the Immigration Office has not demonstrated that the mere fact that the applicant expressed doubts about voluntary return and did not show up for the second interview makes the transfer to the responsible Member State materially impossible. In both cases the applicants provided their address to the Immigration Office. The Immigration Office indicates that this practice is no longer applied.

In the defence memorandum, the Immigration Office sometimes provides an argument addressing the ‘risk of absconding’ as defined in Article 2(n) of the Dublin III Regulation and Article 1(2) of the Aliens Act. Regarding this argument, the CALL points out each time that the CJEU did not in any way state in its Jawo judgment that the term ‘absconding’ of Article 29(2) of the Dublin III Regulation should be interpreted as the way the Return Directive and the Return Manual define the term ‘risk of absconding’. Moreover, the term ‘risk of absconding’ further only appears in Article 28 of the Dublin III Regulation, which specifically refers to the cases in which the member states may detain the person concerned to secure transfer procedures following this Regulation when there is a significant risk of a person absconding. This argument of the Immigration Office is, therefore, not relevant in these cases.[43]

To address the above ambiguities regarding interpreting the concept of ‘absconding’, a legislative proposal to define the concept of “absconding” is currently being drafted. The proposal expands the possibilities to consider certain actions of the applicant as absconding. However, these expansions continue to rely on the intentional element of absconding. Thus, it would allow the Immigration Office to consider someone as absconding based solely on the intentional element without investigating the material element. This seems to go against the CALL litigation and the Jawo judgement.[44] At the time of writing, the proposal is pending for a vote in the federal parliament after which it will enter into force.

The average processing time between the asylum application and the delivery of a decision refusing entry (at the border) or residence on the territory based on the Dublin Regulation is not provided by the Immigration Office but can vary greatly depending on the number of pending cases at the Dublin Unit and the Member State to which the Immigration Office wants to transfer a person to.

The average time limit from accepting a request until the actual transfer is 83 calendar days.

Once the transfer period of 6 or – in case of extension – maximum 18 months has passed, Belgium’s responsibility for examining the asylum application will be accepted when the persons concerned present themselves to the Immigration Office again.

 

Personal interview

Asylum seekers must attend a specific Dublin interview in which they can state their reasons for opposing a transfer to the responsible country.[45] Lawyers cannot be present at any procedure at the Immigration Office, including the Dublin interview. They can nevertheless intervene by sending information on the reception conditions and the asylum procedure in the responsible state or with regard to individual circumstances of vulnerability, presence of family members and relatives or others.[46] This is important since the CALL has repeatedly demanded from the Immigration Office that it responds to all arguments put forward and all information submitted.

During the interview, the Immigration Office will ask about:

  • The identity and country of the asylum seeker
  • The route taken to Belgium
  • Problems in the country of origin. The Immigration Office uses a specific form with standard questions. This questionnaire is very important, as it will form the basis of the second interview at the Commissioner-General for Refugees and Stateless Persons.
  • Submitting the applicant’s documents.

During this interview, asylum seekers can state their reasons for opposing a transfer to the responsible country according to the Dublin Regulation.[47] When a request to take back or take charge an asylum seeker is being sent to another state, this is mentioned in the “proof of asylum application” (“Annex 26”).

The questionnaire contains relevant elements for determining if the sovereignty clause should be applied to avoid potential inhuman treatment of the person concerned in case of transfer to another responsible EU or Schengen Associated state. The asylum seekers are asked why they cannot or do not want to return to that country, whether they have a specific medical condition and why they came to Belgium. However, no questions are explicitly asked about the reception conditions, the asylum procedure and the access to an effective legal remedy in the responsible member state. This is for the asylum seeker to invoke and they have to prove that such general circumstances will apply in their individual situation or that they belong to a group that systematically endures inhuman treatment.

The asylum seeker should specifically ask for a copy of the questionnaire at the end of the interview. Otherwise, the lawyer will have to request a copy at the Immigration Office. In 2019 it emerged that the Belgian authorities were reluctant to issue a copy of the questionnaire automatically, as they claimed that asylum seekers were using these copies to rectify inconsistencies in their “made-up” statements.[48]

When the Immigration Office accepts that Belgium is responsible for the asylum claim, it transfers the file to the CGRS.

Since 2018, the Immigration Office also conducts interviews with adult family members in the context of Article 8 of the Dublin III Regulation to ensure that the minor’s best interest is considered. Based on their advice, the Dublin Unit of the Immigration Office decides if reunification of the child with the adult involved is indeed in their best interest.

 

Appeal

Applications for which Belgium is not responsible are subject to a “refusal of entry or residence” decision by the Immigration Office and are not examined on the merits. The appeal procedure against a Dublin transfer i.e. a decision of “refusal of entry or residence on the territory” is a non-suspensive annulment procedure before the CALL, rather than a “full jurisdiction” procedure (see section on Regular Procedure: Appeal). Dublin transfers decisions may be appealed within 30 days.

The ECtHR considered this procedure not to be an effective remedy in M.S.S. v. Belgium and Greece. However, under the “extreme urgency” procedure, an appeal with short automatic suspensive effect may be provided (see section on Regular Procedure: Appeal). In its C-149/19 judgement of 15 April 2021 the CJEU ruled that an effective legal remedy has to give the opportunity to present any relevant elements that arose after the moment the decision of “refusal of entry or residence” was given.[49] The Belgian Council of State further clarified the implications of this ruling on the legal remedy of the “extreme urgency procedure” in the context of the Dublin-procedure. The CALL must verify whether new elements, provided by the applicant after the transfer decision has been taken, have a decisive effect on the correct application of the Dublin Regulation.[50]

The CALL further verifies if the Immigration Office has respected all substantial formalities.[51]

The CALL also considers whether the sovereignty or protection clauses should have been applied by assessing potential breaches of Article 3 ECHR. In order to do this, the CALL considers all the relevant elements concerning the state of reception conditions and the asylum procedure in the responsible state where the Immigration Office wants to transfer the asylum seeker to; frequently taking into account national AIDA reports. When such information on reception conditions and the asylum procedure in the country is only invoked in an annulment procedure, the CALL will only determine whether this information should have been known by the Immigration Office and included to its assessment of the sovereignty clause, in which case it will suspend the decision or annul it and send it back to the Immigration Office for additional examination.[52]

Following the Tarakhel judgment, in these suspension and action for annulment the CALL not only scrutinises the general reception and procedural situation in the responsible state on systemic shortcomings, but also evaluates the need for individual guarantees from such a state in case shortcomings are not systemic, where the applicant appears to be specifically vulnerable (see the section on Dublin: Procedure).[53]

There is no information available with regard to the average processing time for the CALL to decide on the appeals against Dublin decisions specifically, nor is this available for the annulment or suspension procedures before the CALL in general.

As with all final judgments by administrative and judicial bodies, a non-suspensive cassation appeal before the Council of State can also be introduced against the judgments of the CALL concerning Dublin transfers.[54]

 

Legal assistance

The Ministerial Decree on Second Line Assistance, laying down the remuneration system for lawyers providing free legal assistance, has not determined specific points for a lawyer’s intervention in the Dublin procedure at first instance with the Immigration Office. Of course, the general Judicial Code and Royal Decree provisions on free legal assistance can be applied, and asylum seekers are entitled to a “pro-Deo” lawyer regarding the Dublin procedure. However, since assistance by a lawyer is not allowed during the Dublin interview, the bureau will not apply the general category of administrative procedures for legal assistance. There might, however, be an analogy with the category of written legal advice if the lawyer intervenes in any other way (written or otherwise) at the Immigration Office concerning a Dublin case.

Concerning the appeal, the general rules for free legal assistance in annulment and suspension petitions with the CALL apply (see the section on Regular Procedure: Legal Assistance).

Impact of the reception crisis

Single male applicants who do not receive shelter often have their ‘Dublin interview’ within a month after registration. Since these destitute applicants do not have any social assistant (which is provided in the reception centre), they often experience difficulties obtaining second-line legal assistance. As a result, some applicants have to go to their ‘Dublin interview’ without having first received second-line legal assistance. This might have a negative impact on the applicant’s ability to explain their situation.

 

Suspension of transfers

Sometimes, transfers under the Dublin Regulation are not executed either following:

  • An informal (internal) and not explicitly motivated decision of the Immigration Office itself; or
  • A suspension judgment (in some rare cases followed by an annulment judgment) of the CALL.

Hungary: Since 2016, the Immigration Office stopped Dublin transfers to Hungary, and Belgium started to declare itself responsible for the concerned asylum applications.[55] In November 2023, the Immigration Office confirmed that no transfers were carried out to Hungary and that no Dublin-transfer decisions are currently taken for Hungary.[56] The Dublin procedure takes place, but Belgium declares itself responsible for the asylum application by applying article 17(1) of the Dublin Regulation.[57] 

Greece: In November 2023, the Immigration Office confirmed that no Dublin-transfer decisions are currently taken for Greece.[58] The Dublin procedure takes place, but Belgium declares itself responsible for the asylum application by applying article 17(1) of the Dublin Regulation.[59]

Bulgaria: In April 2023, transfers to Bulgaria were resumed by the Belgian authorities. This was confirmed by the Immigration Office in June 2023.[60] This change is based on the latest AIDA report, the EUAA factsheet ‘Information on procedural elements and rights of applicants subject to a Dublin transfer to Bulgaria’ and a working visit to Bulgaria by the Immigration Office. These sources show “that Bulgaria acts in accordance with the provisions provided for in the Dublin Regulation and that transfers can take place in accordance with national and international regulations” according to the Immigration Office.[61] This policy has been confirmed by the CALL in several cases.[62]

Italy: As a general rule, transfers to Italy are upheld by the CALL. In cases concerning an applicant with a vulnerable profile, the CALL has ruled against a transfer.[63] Based on case law, the decisive factor appears to be the lack of individualised guarantees or an inadequate investigation of the situation upon return to Italy. In December 2022, Italy communicated it would no longer accept forced Dublin transfers. The Immigration Office continues to give Dublin decisions for Italy, indicating that applicants can still return to Italy with the ‘voluntary return procedure’.[64] In practice, this means that forced transfers are not organised by the Immigration Office. No statistics are available on the number of applicants that returned voluntarily to Italy.

Croatia: In 2022, some decisions of the Immigration Office to transfer an asylum applicant with a specific vulnerability to Croatia were suspended by the CALL, because no individualised guarantees concerning the possibility to reintroduce an asylum application had been demanded beforehand.[65]  In 2023, the Immigration Office has solved this issue by asking for individualised guarantees for every individual applicant.[66] Further information can be found under the heading “Individualised guarantees”.

 

The situation of Dublin returnees

The Immigration Office considers part of the Dublin returnees as Subsequent Applicants. This is the case for Dublin returnees whose asylum application in Belgium has been closed following an explicit and/or implicit withdrawal. If an asylum seeker has left Belgium before the first interview, they will have their asylum procedure terminated.[67] When this asylum seeker is sent back to Belgium following a Dublin procedure and lodges an asylum application again, the CGRS is legally obliged to deem it admissible.[68] Nevertheless, depending on what stage of the asylum procedure they were at before leaving, these asylum seekers can be considered subsequent applicants and therefore left without shelter until the admissibility decision is officially taken.[69]

When considered as a subsequent applicant, they have no automatic access to reception. They will fall under the general practice of reception for subsequent applications (see Criteria and Restrictions to Access Reception Conditions).[70] Because of the reception crisis, single male Dublin returnees are denied access to the reception network without receiving an individually motivated decision. They can register on a waiting list, after which they will be invited to a reception place on a later date (for more information about the impact of the reception crisis on the right to reception, see Criteria and Restrictions to Access Reception Conditions). In the meantime, applicants do not have any other solution than to sleep rough, on the streets or in occupied buildings.

In the Netherlands, several male applicants who had to return to Belgium based on the Dublin regulation introduced an appeal at the court of First Instance of the Hague. The court suspended a number of transfers, since access to the reception network for single male Dublin returnees could not be guaranteed by the Belgian authorities.[71] When asked by the Dutch Court what the average waiting time on the waiting list is, the Immigration Office responded that it could not give an indication of how long an applicant has to wait before receiving a place in the reception network.[72] In this same questionnaire, the Belgian authorities indicated that they are unable to respect domestic judgements within the legal time limits.[73] On 13 March 2024, the Dutch Council of State overruled this decision. The Council ruled that the court of first instance wrongly considered that the State Secretary did not provide adequate reasons why he may still rely on the principle of interstate trust for Belgium.[74]

In Denmark, the Refugee Appeals board ruled in a similar manner for three Dublin returnees: “In February 2023, the Belgian authorities informed the Danish Immigration Service that they cannot guarantee that accommodation can be offered shortly after arrival as the reception system was under great pressure. As a result, the Refugee Appeals Board overturned the Immigration Service’s decisions on the Dublin transfer”.[75]

 

 

 

[1] Immigration Office, ‘Procedure Dublin, Application du règlement (UE) n° 604/2013’, available at : https://bit.ly/3SQvv1k.

[2] Immigration Office, ‘Procédure Dublin, Application du règlement (UE) n° 604/2013’, available at: https://bit.ly/3SQvv1k and information provided by the Immigration Office, April 2023.

[3] Ibidem

[4] Art. 16 Dublin III Regulation.

[5] Art. 17 Dublin III Regulation.

[6] Immigration Office, ‘Procédure Dublin, Application du règlement (UE) n° 604/2013’, available at: https://bit.ly/3SQvv1k and information provided by the Immigration Office, April 2023.

[7] Art. 17(1) Dublin III Regulation.

[8] Art. 29(2) Dublin III Regulation.

[9] Art. 3(2) Dublin III Regulation.

[10] Information provided by the Immigration Office, April 2023.

[11] Articles 8, 9, 10 & 11 Dublin-III Regulation

[12] Articles 12.1, 12.2, 12.3, 12.4 & 14 Dublin-III Regulation

[13] Immigration Office, ‘Application of the Dublin Regulation 2023, available in French: https://bit.ly/3SQvv1k and Dutch at: https://bit.ly/3uoYNuj.

[14] See, for example, the reports in French available at: https://bit.ly/2T8Lcj4.

[15] See e.g. Article 4-bis(1) and Article 51/5(3) Aliens Act. Note, however, that Article 3 Law of 21 November 2017 refers to the implementation of the Dublin III Regulation.

[16] Information provided by the Immigration Office, April 2023.

[17] Information provided by the Immigration Office, April 2023.

[18] Vluchtelingenwerk Vlaanderen, Contribution externe dans le rapport annuel de Myria 2018 : ‘Le droit à la vie privée et familiale dans le cadre du règlement de Dublin. Comment faire correspondre la pratique à la réalité des relations familiales?’, available in French at: https://bit.ly/2RSPlv3; Petra Baeyens and Eva Declerck, ‘Welk recht op een gezins- en familieleven binnen het Dublin-systeem’, Tijdschrift Vreemdelingenrecht, 2017/4, 389-400 ; CALL, Decision 297920, 2 November 2023 ; CALL, Decision No 297849, 28 November 2023.

[19] CALL, Decision No 198726, 25 January 2018.

[20] CALL, Decision No 180718, 13 January 2017; CALL, Decision No 198815, 29 January 2018; CALL, Decision No 204600, 29 May 2018.

[21] CALL, Decision No 234423, 25 March 2020; CALL, Decision No 230767, 22 December 2019

[22] CALL, Decision No 199262, 6 February 2018.

[23] CJEU, Case C-578/16, C. K. and Others, Judgment of 16 February 2017.

[24] See for example CALL, Decision No 215 169, 15 January 2019; CALL, Decision No. 223 809, 9 July 2019.

[25] CALL, Decision no 245144, 30 November 2020

[26] CALL, Decision No 206588, 5 July 2018.

[27] Article 51/3 Aliens Act.

[28] Article 57/6/1(i) Aliens Act.

[29] Myria, Contact meeting, 16 January 2019, available in French at: https://bit.ly/2Hj4pLJ, para 290.

[30] CJEU, Case C-670/16 Mengesteab, Judgment of 26 July 2017.

[31] Myria, Contact meeting, 22 November 2017, para 10.

[32] Article 71/3 Royal Decree 1981.

[33] See e.g. CALL, Decision No 144544, 29 April 2015; No 155882, 30 October 2015; No 176192, 12 October 2016; CALL, Decision No 201167, 15 March 2018; for further examples of case law, we refer to the previous versions of the AIDA report.

[34] CALL, Decision No 278 106, 29 September 2022; CALL, Decision No 278 108, 29 September 2022; CALL, Decision No 279 783, 7 November 2022; CALL, Decision No 280 105, 14 November 2022; CALL, Decision No 280 106, 14 November 2022; CALL, Decision No 281 086, 29 November 2022; CALL, Decision No 281 327, 5 December 2022; CALL, Decision No 281 547, 7 December 2022; CALL, Decision No 281 730, 13 December 2022.

[35] CALL, Decision No 281 547, 7 December 2022.

[36] See e.g. CALL, Decision No 297.920, 29 November 2023; CALL, Decision No 297.919, 29 November 2023 and CALL, Decision no 297.83, 20 November 2022.

[37] Short for ‘individual case management’.

[38] CALL, Decision No 203684; CALL, Decision No 203685, 8 May 2018 and Council of State, Decision No 245 799, 17 October 2019.

[39] EDAL, CJEU, Jawo, Judgment in case C-163/17, 19 March 2019, available at: https://bit.ly/3c9TxNq.

[40] See e.g. CALL, Decision No 296473, 30 October 2023.

[41] See e.g. CALL, Decision No 278 146, 29 September 2022; CALL, Decision No 281 100, 29 November 2022; CALL, Decision No 282 524, 23 December 2022; CALL, Decision No 282 525, 23 December 2022; CALL, Decision No 282 966, 10 January 2023.

[42] CALL, Decision No 282 966, 10 January 2023.

[43] CALL, Decision No 278 146, 29 September 2022; CALL, Decision No 282 524, 23 December 2022; CALL, Decision No 282 525, 23 December 2022; CALL, Decision No 282 966, 10 January 2023.

[44] MOVE, ‘Avis de move sur le project de loi relatif à la politique de retour proactive’, 6 November 2023, available in French at: https://tinyurl.com/z54rhm8h, 11-12.

[45] Article 10 Royal Decree on Immigration Office Procedure.

[46] Article 18 Royal Decree on Immigration Office Procedure.

[47] Article 10 Royal Decree on Immigration Office Procedure.

[48] Rapport intérimaire de la Commission chargée de l’évaluation de la politique du retour volontaire et de l’éloignement forcé d’étrangers, February 2019, available in French at: https://bit.ly/2TKdcwP, 53.

[49] CJEU, case C-194/19, H. A. v. Belgium, 15 April 2021, available at: http://bit.ly/3JHeYqL.

[50] Council of State, Judgement No 252.462, 7 December 2021.

[51] Article 39/2(2) Aliens Act.

[52] See e.g. CALL, Decision No 116 471, 3 January 2014 (suspension, Bulgaria) available in Dutch at: http://bit.ly/1FxO9LJ; Decision No 117 992, 30 January 2014 (annulment, Malta), available in Dutch at: http://bit.ly/1Gon1oq.

[53] See e.g. CALL, Decision No 201 167, 15 March 2018; CALL, Decision No 203 865, 17 May 2018; CALL, Decision No 203 860, 17 May 2018; CALL, Decision No 207 355, 30 July 2018; CALL, Decision No 215 169, 15 January 2019; CALL, Decision No. 217 932, 6 March 2019; CALL, Decision No. 224 726, 8 August 2019.

[54] Article 14(2) Acts on the Council of State.

[55] Myria, Contact meeting, 21 December 2016, available in French and Dutch at: http://bit.ly/2jGwYmM.

[56] Myria, Contact meeting, 29 November 2023, p. 7, available in French and Dutch at https://bit.ly/3upHbyB.

[57] Ibidem.

[58] Ibidem.

[59] Ibidem.

[60] Myria, Contact Meeting, 21 June 2023, p. 9, available in French and Dutch at: https://bit.ly/3U1D9GU.

[61] Ibidem, p. 10.

[62] E.g.: CALL, No 296780, 9 November 2023; No 296571, 6 November 2023 and No 296884, 10 October 2023.

[63] See e.g. CALL, Decision No 272 323, 5 May 2022; CALL, Decision No 278 667, 12 October 2022; CALL, Decision No 278 668, 12 October 2022.

[64] Myria, Contact Meeting, 20 September 2023, p. 14, available in French and Dutch at: https://bit.ly/3uDau0u.

[65] CALL, Decision No 281 327, 5 December 2022 and Decision No 281 547, 7 December 2022.

[66] Myria, Contact Meeting, 26 April 2023, p. 10, available in French and Dutch at: https://bit.ly/3SRZEgp.

[67] Article 57/6/5.

[68] Article 57/6/2(1) Aliens Act.

[69] Myria, Contact meeting, 16 January 2019, available in Dutch at: https://bit.ly/2HeyRXu, para 175-180.

[70] Myria, Contact meeting, 21 June 2016, available at: http://bit.ly/2k3obi9, para 9.

[71] Knack, ‘Nederlandse rechters vrezen onmenselijke behandeling voor asielzoekers in België’, 13 October 2023, available in Dutch at: https://bit.ly/3Swl5UP; De Tijd, ‘Nederlandse rechter legt vinger op de wonde in Belgische asielcrisis’, 21 February 2023, available in Dutch at: https://bit.ly/40rOdya.

[72] Rechtbank Den Haag, ‘ECLI:NL:RBDHA:2023:15458’, 12 October 2023, available in Dutch at: https://bit.ly/4643J4H.

[73] “Currently, however, the Belgian authorities are not in a position to immediately act on a court ruling that obliges to grant a shelter” (author’s translation).

[74] Dutch Council of State, ‘202304212/1/VR’, 13 March 2024, available in Dutch at: https://bit.ly/4bdf8CM.

[75] EUAA, ‘Quarterly Overview of Asylum Case Law: Issue no 2’, June 2023, p. 14, available at:

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