Regular procedure

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General (scope, time limits)

The asylum applications for which Belgium is responsible according to the Dublin Regulation are transferred to the office of the CGRS to be examined on their merits. The CGRS, the competent determining authority, exclusively specialises in asylum decision-making. In a single procedure, the CGRS first examines whether the applicant fulfils the eligibility criteria for refugee status. If the applicant does not meet these criteria, the CGRS will automatically examine whether the applicant is eligible for subsidiary protection.[1]

The CGRS has the competence to:[2]

• Grant or refuse refugee status or subsidiary protection status;
• Reject an asylum application as manifestly unfounded;[3]
• Reject an asylum application as inadmissible;[4]
• Apply cessation and exclusion clauses or revoke refugee or subsidiary protection status (including on instance of the Minister);
• Terminate the procedure in case the person does not attend the interview, among other reasons, and reject the application in some cases;[5] and
• Issue civil status certificates for recognised refugees.

The CGRS has to decide within 6 months after receiving the asylum application from the Immigration Office.[6] This may be prolonged by another 9 months where: (a) complex issues of fact and/or law are involved; a large number of persons simultaneously apply for asylum, rendering it very difficult in practice to comply with the 6-month deadline; or (c) the delay is clearly attributed to the failure of the applicant to comply with their obligations.[7]

Where needed, the deadline can be prolonged by 3 more months.[8] If the deadline is extended, the CGRS should inform the applicant of the reasons and give a timeframe within which the decision should be expected.[9]

In cases where there is uncertainty about the situation in the country of origin, which is expected to be temporary, the deadline for a decision can reach a maximum of 21 months. In such a case, the CGRS should evaluate the situation in the country of origin every 6 months.[10]

As in the previous years, the CGRS was unable to reduce the backlog of pending cases in 2023. The total work stock – i.e. the number of files for which the CGRS has not yet taken a decision – has steadily increased from 12,633 pending cases in 2020 to 16,415 at the end of 2022, and further up to 27,702 by the end of 2023. Since 6,500 of these files can be considered normal caseload, the actual backlog amounted to 21,202 cases in February 2024.[11] The CGRS gives two reasons for this considerable increase in 2023: the fact that despite increased productivity, there were more applications than decisions on average every month in 2023 and secondly, the fact that the Immigration Office submitted considerably more cases to the CGRS (more than 3,000 applicants per month in 2023).[12]

Aiming to clear the backlog in all stages of the asylum procedure by optimising the functioning of the Belgian asylum authorities, an audit of these authorities (Immigration Office, CGRS, CALL and Fedasil) was conducted in 2022. The main results indicated a lack of personnel at the Immigration Office and the CGRS, outdated IT systems hindering the efficient exchange of information between the different authorities and significant backlogs of cases at the different authorities.[13] In a policy note published on 27 October 2022, the Secretary of State praised the increase in the amount of decisions taken by the CGRS, noting that it was not only due to an increase in the number of caseworkers. She believes that the influx of applicants has to be reduced as well, which can only be achieved with a European solution.[14] The director of the CGRS stressed the importance of reducing the backlog at the level of the CGRS.[15] Among others it launched a pilot project ‘Tabula Rasa’ that introduces a written questionnaire that can be filled in by the applicant before the CGRS interview. As a result of these initiatives, the CGRS took 23.6% more decisions than in 2022. Despite these efforts, the backlog of the CGRS kept increasing over the course of 2023. (see Number of staff and nature of the determining authority).[16]

Prioritised examination and fast-track processing

The CGRS may prioritise the examination of an asylum application where:[17]

1. The applicant is detained or is subject to a security measure;
2. The applicant is serving a sentence in a penitentiary facility;
3. The Immigration Office or the Secretary of State for Asylum and Migration so requests; or
4. The asylum application is manifestly well-founded.

In practice, the examination is prioritised for applicants in detention, applicants who have filed a subsequent application for international protection, unaccompanied minors, applicants who obtained a protection status in another EU member state, and applicants from safe countries of origin. In 2023, the CGRS also prioritised the examination of specific profiles with a relatively high protection rate from certain countries of origin (mainly Eritrea, Syria and Burundi). For these countries, a positive decision without a CGRS interview can be taken when there are already sufficient elements in the application. These profiles are determined after an internal screening procedure. Not all applicants from these countries are subject to this prioritised treatment.[18]

As of 1 February 2024, a ‘fast track procedure’ is applied for applicants from safe countries of origin and countries with a low recognition rate. These cases are treated with priority by the Immigration Office and the CGRS. The aim is to take a decision within 50 working days. After a first pilot phase, the project will be evaluated by the Secretary of State and adapted if needed. The nationalities on which the fast-track procedure will be applied can vary. In the first phase, the procedure will be applied to applicants from safe countries of origin (currently: Albania, Bosnia-Herzegovina, Northern-Macedonia, Kosovo, Serbia, Montenegro, and India) and the following countries with low recognition rates: Georgia, Moldavia and DRC).[19]

Personal interview

At least one personal interview by a protection officer at the CGRS is imposed by law.[20] The interview may be omitted where:

(a) the CGRS can grant refugee status based on the elements in the file;

(b) the CGRS deems that the applicant is not able to be interviewed due to permanent circumstances beyond their control;

or (c) where the CGRS deems it can decide on a subsequent application based on the elements in the file.[21]

Generally, for every asylum application, the CGRS conducts an interview with the asylum seeker. However, the questions’ length and substance can vary substantially, depending e.g. on the manifestly well-founded or unfounded nature of the claim or the presence or absence of new elements presented in case of a subsequent application. The interview serves the CGRS to examine whether the asylum application is credible and qualifies for refugee status or subsidiary protection status. The lawyer and/or another person of confidence chosen by the asylum seeker can attend the interview.[22] The CGRS has elaborated an interview charter as a Code of Conduct for the protection officers, available on its website.[23]

If the CGRS is considering Cessation or Revocation of international protection after receiving new facts or elements, it can choose not to interview the person and to request written submissions on why the status should not be ceased or withdrawn instead.[24] In practice, however, these persons will be invited for a personal interview.[25]

Since 2020, the CGRS sometimes grants refugee status without conducting a personal interview. This procedure is only applied in cases in which a positive decision is taken. This procedure is not limited to certain nationalities and is not a standardised approach for specific nationalities; whether this procedure is applied depends on the elements in each individual case and is selected through an internal screening procedure of the CGRS. In 2021, refugee status was granted without a personal interview in around 1,000 cases, mostly concerning applicants from Burundi, Syria and Eritrea.[26]

Between September 2023 and January 2024, the CGRS tested a pilot project named ‘Tabula Rasa’, that aims to try out several new working methods to maximise the number of decisions and alleviate the backlog of cases.[27] One of the measures includes sending preliminary questionnaires to applicants in order to obtain more information before the personal interview. Applicants receiving the questionnaire are required to describe the important facts and the problems having led them to apply for international protection. The filling out of this questionnaire does not replace the personal interview but aims to shorten it: the part of the interview that usually contains a ‘free narrative’ by the applicant, is now replaced by targeted questions based on the written declarations in the questionnaires. There are no sanctions for not responding, nor are there any substantive or formal requirements as to what must be included in the written declaration.[28] The test phase of this project only included files on French-language roles and applicants from specific countries of origin (DRC, Guinea, Mauritania, Senegal, Turkey, Afghanistan, Syria, Palestine, Albania, Iran, Latin American countries, a few Asian countries) staying in a reception centre.[29] The project will be evaluated in February and March 2024.[30] For this evaluation process, the CGRS is in close contact with Fedasil and other relevant stakeholders, such as NGO’s, UNHCR, lawyer associations… Indeed, several NGO’s and lawyer associations have already voiced their concerns about the current functioning of this new measure. The new system puts a lot of extra work and responsibilities in the hands of the applicant’s lawyers, who are considered to help their client fill out the questionnaire. In case a lawyer isn’t capable or willing to take up this extra work, first line legal services of NGO’s have taken up this task. Concerns have been raised regarding their competence in and resources for handling such responsibility.[31]

Documents 

Before, during or after the personal interview at the CGRS, applicants can submit documents supporting their statements. Applicants are expected to provide any documents, especially those concerning the identity, the grounds for the application for protection and the travel route, as quickly as possible. Although in March 2023, the CGRS briefly changed the procedure for submitting documents in support of an application for international protection, only allowing the submission of documents by registered mail or by delivery to the CGRS against receipt[32],  this procedure was again adjusted as of 15 May 2023. Documents can since then be submitted to the CGRS (1) by sending them to the CGRS via registered or ordinary mail; (2) by handing them at the reception desk of the CGRS against receipt; (3) by sending them to the CGRS by e-mail. When sent by e-mail, documents can be included in JPEG, PNG, PDF, Word or other Microsoft Office file formats. It is impossible to submit documents through Internet links (YouTube, WeTransfer or anything that can lead to an insecure website). CD-ROMs or USB sticks containing video or audio clips can be submitted by regular or registered mail or handed in at the reception desk.[33] The CGRS has drafted an explanatory document about the submission of documents, including an inventory that it recommends using for this purpose.[34]

Interpretation

When lodging their application at the Immigration Office, asylum seekers must indicate irrevocably and in writing whether they request the assistance of an interpreter in case their knowledge of Dutch or French is insufficient.[35] In that case, the examination of the application is assigned  to one of the two “language roles” (Dutch or French) on the basis of the needs of the asylum instances, the wishes of the applicant having no impact on this decision. In the case of a subsequent application, the same language as in the first asylum procedure is selected.[36] This then determines the language in which the interviews are conducted (with the presence of an interpreter if requested), the language of all documents and decisions by the asylum services and, if applicable, the language of the appeal procedure at the CALL.

In general, an interpreter who speaks the mother tongue of the asylum seeker is always present during interviews before the asylum services. Issues arise only in cases of applicants that speak a rare language or idiom; for such situations, an interpreter speaking another language can be proposed. During and after the interview, the interpreter has to respect professional secrecy and act according to specific rules of deontology. A brochure on this Code of Conduct is also available on the CGRS website.[37] Due to the varying quality of interpretation, the correct translation of the declarations transcribed in the interview report are sometimes raised by lawyers as a point of contention in the appeal procedures before the CALL. However, the CALL generally does not consider this element since proving that the interpreter mistranslated is complex.

Recording and transcript

There is no video or audio recordings of the interview, but the transcript must faithfully include the questions asked to and declarations of the asylum seeker; the law demands a “faithful reflection” thereof,[38] which is understood to be different from a verbatim transcript. The CGRS protection officer must confront the asylum seeker with any contradiction in their declarations, but this is not systematically done. Additional remarks or supporting documents can be sent to the CGRS afterwards and will be taken into consideration.[39]

The asylum seeker or their lawyer may request a copy of the interview report and the complete asylum file. This should be done within 2 working days following the interview.[40] In practice, the copy can also be requested after this delay, but the applicant is not ensured to receive it before a decision has been taken.[41] The asylum seeker or their lawyer may provide comments within 8 working days after the reception of the file.[42] In such a case scenario, the CGRS will take them into consideration before issuing a decision. When the conditions are not met, the comments will only be taken into consideration if they are sent on the last working day before the CGRS makes its decision. If no comments reach the CGRS on that last working day, the asylum seeker is presumed to agree with the report of the interview.[43]

Since 2019 the CGRS conducts interviews through videoconference to all 6 detention centres. This interview is organised the same way as a regular interview, meaning that there is an interpreter present at the office of the CGRS and that the lawyer can be present to attend the interview. The CGRS evaluated this practice as positive. Several lawyers were less positive about this approach and argued that it impedes the creation of a safe space. The videos themselves were not kept on file, and the CGRS used the transcript following the interview as the basis.[44] In 2020, the Flemish Bar Association expressed similar sentiments in a letter addressed to the CGRS: “The OVB firmly believes that the technique of video interviewing in the context of an asylum case, of people who are then often unfamiliar with IT applications, does not work. Telling about trauma, feelings, beliefs and emotion-laden details of an asylum story is certainly not only done in a verbal way. Non-verbal communication is all the more important, even crucial, in these circumstances. And this falls away almost-completely in video interviews so that a correct assessment of a case becomes impossible”.[45]

The asylum seeker and their lawyer can request for an interview in person when they can provide elements of vulnerability that would justify such a request. In exceptional cases this is granted. However, the call for the interview did not mention the possibility of requesting an in-person interview.[46] The mere fact of not being familiar with this type of technology is not sufficient to be granted an in-person interview.

Since 19 September 2022, two Royal Decrees allow the Immigration Office and the CGRS to organise ‘remote’ interviews.[47] This means that it is now allowed for the interviewer to be physically present in another room than the applicant and conduct the interview through communication means that allow a conversation at a distance in ‘real time’, such as audio-visual connections or videoconference technology. The interpreter should always be situated in another room than the applicant to ensure their impartiality.  Audio(visual) recordings of the interviews are not allowed. Physical interviews remain the standard procedure. The Immigration Office and the CGRS investigate on a case-by-case basis whether a remote interview should be preferred. They have discretionary power in this regard and consider the application’s or the person’s operational context and specificities. The applicant needs to be informed about the possibility that their interview takes place remotely, the modalities and measures taken to guarantee confidentiality, and the possibility of objecting to this measure. If such an objection is made, the Immigration Office or the CGRS investigate the arguments formulated by the applicant. However, no appeal is possible against a decision to conduct the interview remotely. In case of a negative decision, applicants can formulate their objections as an element in their appeal before the CALL.

Guardians (and at the CGRS, also lawyers and trustees), can attend the remote interview. However, both Royal Decrees stipulate an exception on this principle for reasons of confidentiality: if the guardian, lawyer or trust person do not respect the measures that aim to ascertain the confidentiality of the interview, the interviewer can decide that they can no longer attend the interview. In such a case, the interview can continue in their absence. Appeals to suspend these exceptions were lodged before the Council of State. In two judgments of 3 October 2022, the Council of State has suspended the execution of these exceptions as far as the guardians of unaccompanied minors are concerned, stating that this exception is contrary to article 9 of the ‘Guardianship Law’[48] which requires the presence of guardians during interviews of their pupils.[49] The Council of State did not suspend the exception concerning lawyers and trustees. For all three categories, action for annulment of the articles stipulating the exceptions is currently pending.

Following the entry into force of these Royal Decrees, the CGRS has indicated to resume the interviews by videoconference in the closed centres. The project for conducting remote interviews from open reception centres has been put ‘on hold’.[50] The CGRS uses MS Teams to conduct remote interviews. Lawyers or trustees need to be present in the same room as the applicant because the current software does not allow a third party to participate in the videoconference while also ensuring its confidentiality.[51]

Appeal

Appeal before the CALL

Introduction of the appeal

A judicial appeal can be introduced with a petition before the CALL against all negative decisions of the CGRS within 30 days.[52] When the applicant is being detained in a specific place in view of their removal from the territory (a place as described in art. 74/8 and 74/9 of the Aliens act), the time limit to appeal is reduced to 10 days, and to 5 days if a  detained person appeals against an inadmissibility decision after a subsequent application for international protection.[53] The time limit is also reduced to 10 days for appeals against inadmissibility decisions after subsequent applications for international protection of other applicants (see Admissibility procedure: Appeal), and for appeals in cases in which the CGRS has applied the accelerated procedure (see Accelerated procedure: Appeal).

Since March 2022, the appeal petition can be introduced both by registered letter and digitally through the application ‘J-BOX’.[54] The Royal Decree of 21 November 2021, introducing this digital communication system in the procedures before the CALL, makes it possible for parties to send all procedural documents (petition, note with remarks, synthesis memoir, additional notes…) both digitally and by registered letter. In accelerated and suspension procedures in cases of ‘extremely urgent necessity’, procedural documents can, as of 1 March, only be directed to the CALL through either the digital system or by deposing the documents physically at the clerk service of the CALL against receipt, excluding the previously habitual possibility of sending these documents by fax.[55] For detention applicants, the petition’s introduction remains possible in the hands of the director of the detention facility.[56] Finally, the Royal Decree allows the CALL to send procedural documents (such as invitations for hearings, judgements, …) to the parties through J-BOX.[57] The CALL has communicated on its website that when the applicant is assisted by a lawyer who has a J-BOX account, it will preferably send all procedural documents digitally through J-BOX.[58]

Although the digitalisation of the procedure before the CALL is a long-awaited measure, questions are raised as to the total abandonment of fax or any other easily accessible digital communication means. The current system risks negatively affecting applicants not assisted by a lawyer who cannot access the J-BOX system.  In its advisory opinion, the Council of State raised the question if the abandonment of fax notifications would not deprive certain categories of applicants of a fundamental communication method, thus disproportionately restricting access to justice as a general principle of the rule of law. The Council of State indicated that, unless the legislator would allow for the system not to be applied in cases of extremely urgent necessity, the abandonment of fax communications would violate the right to access to justice in a discriminatory way.[59] Notwithstanding this advisory opinion, the legislator has decided to abandon the use of fax as a communication method altogether, without providing other electronic communication means for people who do not have access to J-BOX, arguing that in the current state of jurisprudence, the introduction of a suspension appeal in extremely urgent necessity is only possible for people faced with the imminent risk of being removed from the territory. These people can either introduce the appeal in the hands of the director of the detention facility, if they are being detained, or physically at the clerk service of the CALL against receipt. However, the limitation of the suspension procedures in extremely urgent necessity to this category of applicants is not based on legislative texts but on the latest jurisprudence of the CALL. Since the Belgian legal system is not based on precedents, this situation might evolve in time, making it possible for other people – for example persons applying for student visa and residing abroad – to introduce suspension procedures in extremely urgent necessity. The new appeal system may make it very difficult for them to access the appeal procedure without seeking help from a Belgian lawyer.

Effects of the appeal

The appeal has an automatic suspensive effect on the regular procedure.[60]

The CALL has a so-called “full judicial review” competence (plein contentieux) which allows it to reassess the facts and to take one of three possible decisions:

• Confirm the unfavourable decision of the CGRS;
• Overturn it by granting refugee or subsidiary protection status; or
• Annul the decision and refer the case back to the CGRS for further investigation.[61]

The CALL has no investigative powers of its own, meaning that it must decide based on the existing case file. Therefore, if it considers important information lacking, it must annul the decision and send the case back to the CGRS for further investigation.

All procedures before the CALL are formalistic and essentially written, thereby making the intervention of a lawyer de facto necessary. All relevant elements have to be mentioned in the petition to the CALL.[62] Parties and their lawyers are then invited to an oral hearing, during which they can explain their arguments to the extent they were mentioned in the petition.[63] The CALL is also obliged to consider every new element brought forward by any of the parties with an additional written note before the end of the hearing.[64] Depending on how the CALL assesses the prospects of such new elements leading to the recognition or granting of international protection status, it can annul the decision and send it back to the CGRS for additional examination – unless the CGRS can submit a report about its additional examination to the CALL within 8 days – or leave the asylum seeker the opportunity to reply on the new element brought forward by the CGRS with a written note within 8 days. Failure to respond within that 8-day time is a presumption of agreeing with the CGRS on this point.

In some cases, the CALL can choose to apply a ‘written procedure’ if it does not consider an oral hearing necessary to render a judgement. The parties then receive a provisional decision containing the reasons why the written procedure is being applied as well as the judgement the CALL makes based on the elements in the administrative file. If one of the parties disagrees with the judgment, it has 15 days to ask the CALL to be heard, in which case an oral hearing will be organised. If none of the parties asks to be heard, they are supposed to consent to the judgment, which is subsequently confirmed by a final judgment.[65]

Since 10 December 2021, two new possibilities of applying a purely written procedure were added to the Aliens Act:

• Both parties can always ask to apply a purely written procedure.[66] Both the counterpart and the judge have to agree. In that case, the judge decides when the debates will be closed. Until that day, both parties can introduce pleading notes with written arguments.
• in exceptional circumstances (e.g. a sanitary crisis, a natural disaster, fire in the buildings of the CALL), the Aliens Act allows for the adoption of a Royal Decree to activate an ‘emergency scenario’ in which the possibilities of applying a purely written procedure are enlarged during a (prolongable) period of six months.[67] During this period, the parties’ right to demand to be heard in case of application of the purely written procedure in the application of article 39/73, §2 Aliens Act, is replaced by the possibility of introducing a pleading note. After receiving the provisional decision containing the reasons why the written procedure is being applied and the judgement the CALL makes based on the elements in the administrative file, both parties have 15 days to introduce a pleading note arguing why they disagree with the content of the decision. If none of the parties asks to be heard, they are supposed to consent to the judgment, which is subsequently confirmed by a final judgment. In case one of the parties introduced a pleading note, the judge can either take a decision, considering the arguments developed in the pleading note, or decide to reopen the debates. In the last case, the other party has 15 days to introduce its own pleading note.[68] The judge can apply a purely written procedure in accelerated procedures with full judicial review and suspension procedures in extremely urgent necessity.[69]

In the preparatory works of this new legislation, it is explained that the expansion of the possibilities of applying the written procedure aims to clear the backlog of pending cases at the second instance and render the procedure more efficient. It is argued that the organisation of oral hearings significantly increases the length of the procedure, especially given the sanitary measures and necessity of ‘social distancing’.[70]

The CALL must decide on the appeal within 3 months in the regular procedure.[71] There are no sanctions for not respecting the time limit. In practice, the appeal procedure often takes longer. In 2023, the average processing time (the total of the delays divided by the total number of files) of appeals concerning decisions on applications for international protection (where the CALL has “full judicial review” competence) was 153.7 calendar days or around 5 months for those appeals introduced in 2023 and for which a decision was taken in 2023. When adding appeals introduced before 1 January 2023, for which a decision was taken in 2023, the average processing time was 230.9 days; this number is significantly higher because it includes the treatment of the backlog of the cases pending before the CALL. The number of appeals increased significantly in 2023, leading to a backlog of pending cases for the first time in years.[72]

Decisions of the CALL are publicly available.[73]

Generally speaking, lawyers and asylum seekers are quite critical about the limited use the CALL seems to make of its full jurisdiction, which is reflected in the low reform and annulment rates.[74] The previous years, there was a big difference in jurisprudence between the more liberal Francophone and the stricter Dutch chambers of the CALL.[75] According to the President of the CALL, the discrepancy in the case law is not necessarily related to language but stems from the different judges as each of them is independent. It is up to the CALL to ensure that the case law is consistent, either through a judgment taken in the general assembly or in the united chamber (where 6 judges sit, namely 3 French judges and 3 Dutch judges).[76] On the other hand, the quality of appeals is not always guaranteed, especially if they are not introduced by specialised lawyers. The discrepancy between the jurisprudence of the Francophone and Dutch chambers in appeals concerning decisions on applications for international protection (where the CALL has “full judicial review” competence) has been met with criticism for several years. In 2022, Francophone chambers recognised international protection in 9,54% of the appeals (7,93% refugee status, 1,61% subsidiary protection), compared to a recognition rate of only 1,5% (1,03% refugee status, 0,47% subsidiary protection) in Dutch chambers.[77] In 2023, the discrepancy between recognition rates is much smaller for the first time in years: Francophone chambers recognised international protection in 11,73% of the appeals (9,67% refugee status, 2,06% subsidiary protection), compared to a recognition rate of 7,36% in Dutch chambers (7,24% refugee status, 0,12% subsidiary protection). However, the discrepancy between rejection rates remains high: 67,86% of the appeals were rejected by French chambers, compared to 85,19% in Dutch chambers. This is explained by a discrepancy in the number of annulment decisions: French chambers annulled 20,42% of the appeals compared to only 7,45% in Dutch chambers. [78]

The Immigration Office will give the order to leave the territory when:

• The CALL made its final rejection decision;
• There is no option left for a suspensive appeal with the CALL;
• The deadline for lodging the appeal has expired;
• The person does not have a residence permit on another legal basis.

Against an order to leave the territory, only a non-suspensive appeal is left in an annulment procedure before the CALL (within 30 days).

Unlike suspensive appeals against in-merit decisions, an appeal against an order to leave the territory or a Dublin decision has no automatic suspensive effect. A request to suspend the decision can be introduced simultaneously with the appeal. In case no request to suspend has been introduced and once the execution of the removal decision becomes imminent, an appeal in an extremely urgent necessity procedure can be lodged before the CALL within 10 or 5 calendar days in case of a subsequent return decision, invoking a potential breach of an absolute fundamental right (e.g. Article 3 ECHR).[79] This appeal is suspended until a judgment is issued.[80] It requires a swift decision of the CALL within 48 hours; the time limit is extended to 5 days, where the person’s expulsion is not foreseen to occur until 8 days after the decision.[81]

It remains questionable if the legislative changes introduced in 2014 regarding time limits, suspensive effect and “full judicial review” are sufficient to guarantee that annulment appeal procedures are effective remedies, as the ECtHR calls this system too complex to meet the requirement of an effective legal remedy under article 3 ECHR.[82] A study by UNHCR in 2019 stated that several actors regret the rigidity and complexity of the asylum procedure in Belgium, which inevitably requires greater specialisation by lawyers.[83]

Onward appeal to the Council of State

A possibility of onward appeal against decisions of the CALL exists before the Council of State, the Belgian supreme administrative court.[84] Appeals, before the Council of State must be filed within 30 calendar days after the decision of the CALL has been notified and have no suspensive effect. They are so called “cassation appeals” that allow the Council of State only to verify whether the CALL respected the applicable legal provisions and substantial formal requirements, failing which the decision should be annulled.[85] It cannot make its own assessment and decision on the facts of the case. Appeals before the Council of State are first channelled through an admissibility filter, whereby the Council of State filters out, usually within a month, those cassation appeals that have no chance of success or are only intended to prolong the procedure.[86] If the decision under review is annulled (“quashed”), the case is sent back to the CALL for a new assessment of the initial appeal.

Legal assistance

Article 23 of the Belgian Constitution determines that the right to a life in dignity implies for every person inter alia the right to legal assistance. The Aliens Act guarantees free legal assistance by a lawyer to all asylum seekers, at every stage (first instance, appeal, cassation) of the procedure and in all types of procedures (regular, accelerated, admissibility, appeal in full jurisdiction, annulment and suspension). However, during the Immigration Office interview the lawyer cannot be present. The Reception Act also guarantees asylum seekers efficient access to legal aid during the first and the second instance procedure, as envisaged by the Judicial Code.[87]

The asylum procedure itself is free of charge. Regarding the lawyer honorarium and costs, asylum seekers are legally entitled to free judicial assistance.

There are two types of legal assistance: first-line and second-line.[88] The competence of the organisation of first-line assistance lies at the regional level.

First-line legal assistance

The so-called “first-line assistance” is organised by local commissions for legal assistance, composed of lawyers representing the local bar association and the Public Centres for Social Welfare (CPAS / PCSW). There, first legal advice is given by a lawyer, or a person is referred to a more specialised instance, organisation, or to “second line assistance”, completely free of charge, regardless of income or financial resources. The first-line assistance is organised in each judicial district by the Commission for Legal Assistance. Besides these lawyers’ initiatives, other public social organisations and NGOs provide this kind of first-line legal assistance.

 Second-line legal assistance

“Second line assistance” is organised by the local bar associations of each judicial district.  Each bar association has a bureau for legal assistance that can appoint a lawyer for (entirely or partially) free second-line assistance, the so-called “Pro Deo lawyer”. In practice, this might limit the free choice of a lawyer to a certain extent. Still, in theory, every lawyer can accept to assist someone “pro-Deo” and ask the bureau to be appointed as such upon the direct request of an asylum seeker. Within this “second-line assistance”, a lawyer is assigned to give substantial legal advice and to assist and represent the person in the asylum procedure.

The criteria for lawyers to register on the lists of second-line assistance in migration law varies widely. The criteria are often not demanding enough and the lawyers appointed are not always sufficiently competent or specialised in the field. Nevertheless, some larger bar associations have set up a specialised section on migration law and have tightened up the criteria to be able to subscribe to it. However, other bars with few lawyers simply lack specialised lawyers and some even oblige their trainees, who are not specialised, to register on the list.[89]

The 2003 Royal Decree on Legal Aid determines the conditions under which one can benefit from this second-line legal assistance free of charge. Different categories are generally defined depending on the income or financial resources level and, concerning specific procedures, on the social group they belong to. There is a rebuttable presumption of being without sufficient financial resources for asylum seekers and persons in detention. Concerning children, unaccompanied or not, this presumption is conclusive.  Adults should prove their lack of financial resources to support said presumption. The local bureau for legal assistance assesses the proof provided. Applicants residing in a reception centre during their asylum procedure are considered to meet the conditions for free legal assistance, given that the condition of having insufficient resources also applies to get access to the reception system. Applicants staying at a private address during their asylum procedure, however, need in principle to provide information on the identity of the people staying at the same address and their respective income. Because of the presumption of being without sufficient financial resources, the elements of proof provided are assessed less strictly than is the case for other categories of people applying for free legal assistance. Practice varies between the different bureaus for legal assistance, however.

The law permits the Bureau for legal assistance to apply a preliminary merits test before appointing a “pro-Deo” lawyer to refuse those manifestly unfounded requests, which have no chance of success.[90] However, this provision is only very rarely applied in practice. Therefore, if a person entitled to legal aid asks for a lawyer free of charge to be appointed, the bureaus for legal assistance grant this quasi-automatically. However, there are reports of a more stringent appointment practice in some districts when the lawyers request to be appointed themselves after being consulted by an asylum seeker, especially in case of subsequent asylum applications.[91]

The starting point for the remuneration of each pro bono intervention by a lawyer is a nomenclature, in which a list of points granted per intervention is determined.[92] This nomenclature has been modified by a Ministerial Decree of 19 July 2016.[93] The amount of points equals the estimated work time for each intervention, with one point equalling one hour of work. For example:

Lawyers do not have to prove the time spent executing each intervention. It suffices to provide proof of the intervention itself. If the lawyer believes their actual work time exceeded the estimation put forward in the nomenclature by more than 100%, they can introduce a motivated request for an augmentation of the points. On the other hand, the Bureau of legal assistance can also reduce the points attributed to a lawyer if it considers that the lawyer has not executed the intervention with due diligence and efficiency.[94] To that end, the different bureaus of legal assistance have established an audit mechanism in which a group of volunteer lawyers checks the quality of the work of pro deo lawyers. There is also a “cross-control” system in which the bureaus of legal assistance audit each other’s work. The results are sent to the Minister of Justice, who can affect additional audits.

Pro-Deo lawyers receive a fixed remuneration from the bureau for legal assistance, which is financed by the bar associations that receive a fixed annual subsidy “envelope” from the Ministry of Justice. Since 2018, the value per point was finally determined at €75, subjected to indexation based on the health index of 2016.[95] In 2023, this fixed amount of €75 per point was enshrined in a proposal of Royal Decree that is currently submitted to the Council of State for advice.[96] With application of the indexation, the value of a point for legal actions accomplished in 2020-2021 was determined at €90,36.

In theory, costs can be reclaimed by the state if the asylum seeker appears to have sufficient income, but this does not happen in practice. However, the 2016 reform made the “pro-Deo” remuneration system less attractive to lawyers. Another obstacle for lawyers to engage in this area of legal work is the fact that they are only paid once a year for all the cases they have closed and reported to their bar association in the previous year. The case can only be closed once all procedures are finished, which is long after the lawyer undertook the actual interventions. This legal aid funding appears to impact the quality of service delivery and the effectiveness of the legal aid system. Many lawyers confirm that legal aid is problematic as it is currently based on low, unpredictable, and deferred compensation.[97]

Depending on the Bar Association, asylum seekers might experience problems when wanting to change “pro-Deo” lawyers. Some Bars do not allow a second Pro-Deo lawyer to take over the case from the one that was initially assigned. Although this limits – to a certain degree – abuses by lawyers acting in bad faith, this measure has also resulted in asylum seekers being subject to the arbitrariness of lawyers providing low-quality services. It has prevented experienced lawyers from assisting persons needing specialised legal assistance.

[1] Article 49/3 Aliens Act.

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

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

[4] Article 57/6(3) Aliens Act.

[5] Article 57/6(5) Aliens Act sets out the reasons for terminating the procedure.

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

[7] Ibid.

[8] Ibid.

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

[10] Ibid.

[11] CGRS, Asylum statistics: February 2024, available in English at https://tinyurl.com/ky9t63be.

[12] CGRS, “Asylum statistics: survey 2023”, available at: https://bit.ly/4atYCxe.

[13] De Standaard, ‘Audit asylum authorities revealed weaknesses: too little personnel and outdated IT-systems’, 4 October 2022, available in Dutch at https://bit.ly/3J5UM18.

[14] Nicole de Moor, ‘Policy Note Asylum and Migration’, 3649/008, 27 October 2023, available in French and Dutch at: https://tinyurl.com/5e6t9j89, 3.

[15] Commissary-General for Refugees and Stateless persons Dirk Van den Bulck: “All of us at the CGRS will continue to do everything possible to reduce the backlog in order to return to the situation where all applicants receive a decision within a short period of time. This is as important as taking the right decision, which means granting international protection status to all those who need protection.” website CGRS: https://bit.ly/3ZCVPgi.

[16] In December 2022 and January 2023, 85 people were recruited. Following the allocation of an additional budget by the Council of Ministers on 9 December 2022, an additional selection will be organised. Additional staff members (of various profiles) will enter into service in April-May 2023. See website of the CGRS: https://bit.ly/3ZCVPgi.

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

[18] Myria, Contact meeting 20 March 2024.

[19] Secretary of State Nicole De Moor, ‘Fast-track procedure for faster treatment of asylum applications from DR Congo, Moldavia and Georgia’, 1 February 2024, available in Dutch at https://tinyurl.com/47k7y5my; Chamber of Representatives, Commission of internal affairs, security, migration and administrative matters, Wednesday 7 February 2024, available in Dutch and French at https://tinyurl.com/2mhwru8p, 16-17. 

[20] Article 57/5-ter(1) Aliens Act.

[21] Article 57/5-ter(2) Aliens Act.

[22] Article 13/1 Royal Decree on CGRS Procedure.

[23] CGRS, Interview Charter, available at: http://bit.ly/1FAxkyQ.

[24] Article 57/6/7(2) Aliens Act.

[25] Myria, Contact meeting, 22 January 2020, available in French at: https://bit.ly/2VhsVE6.

[26] Myria, Contact meeting 19 January 2022, available in French and Dutch at: https://bit.ly/3sy9SFN, 33.

[27] CGRS, Tabula Rasa, 18 July 2023, available in English at: https://bit.ly/3IV90CA.

[28] Myria, Contact meeting 20 September 2023, available in French and Dutch at: https://bit.ly/3TyUvZW, 24-25.

[29] Myria, Contact meeting 20 September 2023, available in French and Dutch at: https://bit.ly/3TyUvZW, 21.

[30] Information provided during the Myria Contact meeting of January 2024.

[31] Newsletter ADDE n° 199, September 2023, Accessible in French at: https://bit.ly/49eWGri, 2-6.

[32] CGRS, ‘New way of submitting documents in support of an application’, available in English at: https://bit.ly/3ZTNOTz.

[33] CGRS, ‘Adjustment of the procedure for submitting documents in support of an application for international protection’, available in English at: https://bit.ly/4auXwkP.

[34] CGRS, ‘Information for applicants, their lawyers and trusted persons’, available in English at: https://bit.ly/4aqg8mF.

[35] Article 51/4(2) Aliens Act.

[36] Ibid.

[37] CGRS, Deontology for translations and interpretations, available at: http://bit.ly/1ROmcHs.

[38] Article 57/5-quater(1) Aliens Act.

[39] Articles 16-17 and 20 Royal Decree on CGRS Procedure.

[40] Article 57/5-quater(2) Aliens Act.

[41] Myria, Contact meeting, 20 June 2018, available in Dutch at: https://bit.ly/2WiFPjf, para.35.

[42] Article 57/5-quater(3) Aliens Act.

[43] Ibid.

[44] Myria, Contact meeting, 21 September 2016, available at: https://bit.ly/3vqhUot, para 25.

[45] OVB, ‘Position concerning the use by the CGRS of video recording techniques for interviews in asylum cases’, 18 November 2020, available in Dutch at: https://tinyurl.com/mry778p8.

[46] Myria, Contact meeting, 22 January 2020, available at: https://bit.ly/2LtQV3K.

[47] Royal Decree of 26 November 2021 modifying the Royal Decree of 11 July 2003 on the functioning and the procedure before the Commissary General for Refugees and Stateless persons and Royal Decree of 26 November 2021 modifying the Royal Decree of 11 July 2003 concerning certain elements of the procedure that has to be followed by the Immigration Office charged with the investigation of asylum applications on the basis of the law of 15 December 1980, available in Dutch and French at http://bit.ly/3m4azX6.

[48] Title XIII, Chapter VI of the Program Law of 24 December 2002, https://bit.ly/40N0JHV.

[49] Council of State 3 October 2022 nr. 254.656, available in French at https://bit.ly/3ZU2bY4 and Council of State 3 October 2022 nr. 254.655, available in French at https://bit.ly/3nL2UgF.

[50] Myria, ‘Contact Meeting International Protection’, 23 November 2022, available in French and Dutch at: https://tinyurl.com/2w2ubuhx, 21.

[51] CGRS, ‘Videoconferences in closed reception centres’, 19 September 2022, available in Dutch at https://bit.ly/3MEV6aR.

[52] Article 39/57(1) Aliens Act.

[53] Ibid.

[54] Article 39/57-1 Aliens Act; Royal Decree of 21 November 2021 modifying the Royal Decree of 21 December 2006 on the legal procedure before the Council for Alien Law Litigation. See also on the website of the CALL: Numérisation du Conseil: J-Box, 7 December 2021, https://bit.ly/3hKHqud and EU via J-BOX, https://bit.ly/3w4AOPN.

[55] Article 3, § 1, 2^nd al. Royal Decree 21 December 2006.

[56] Article 39/69, § 2 Aliens Act and article 3, §1, al. 4 Royal Decree 21 December 2006.

[57] Article 3bis Royal Decree 21 December 2006.

[58] CALL, Frequently Asked Questions, https://bit.ly/3tIiGbF.

[59] Council of State, Advisory opinion nr. 66.857/4 of 20 January 2020, https://bit.ly/35zJEdt, 9-10; referred to in Council of State, Advisory opinion nr. 68.601/4 of 20 January 2021, https://bit.ly/3tEcjpJ, 27-28.

[60] Article 39/70 Aliens Act.

[61] Article 39/2 Aliens Act.

[62] Article 39/69 Aliens Act.

[63] Article 39/60 Aliens Act.

[64] Article 39/76(1) Aliens Act. Still, in its Singh v. Belgium judgment of October 2012, the ECtHR also found a violation of the right to an effective remedy under Article 13 ECHR because the CALL did not respect the part of the shared burden of proof that lies with the asylum authorities, by refusing to reconsider some new documents concerning the applicants’ nationality and protection status in a third country, which were questioned in the preceding full jurisdiction procedure: ECtHR, Singh and Others v. Belgium, Application No 33210/11, Judgment of 2 October 2012.

[65] Article 39/73 Aliens Act.

[66] Art. 39/73-2 Aliens Act.

[67] Art. 39/73-3 Aliens Act.

[68] Art. 39/73-3, §§1-3 Aliens Act.

[69] Art. 39/73-3, §4 Aliens Act.

[70] Chamber of representatives, Proposition of law changing the law of 15 December 1980, Doc. Nr. 55 2034/001, 1 June 2021, available in Dutch and French at: https://bit.ly/3tEcjpJ, 6.

[71] Article 39/76(3) Aliens Act.

[72] CALL Activity report 2023, available in Dutch and French at: https://tinyurl.com/3rec62sr.

[73] Judgments are available on the website of the CALL at: http://bit.ly/2waz6tu.

[74] CALL Activity report 2023, available in Dutch and French at: https://tinyurl.com/3rec62sr.

[75] CALL, Report of activities of the year 2019, available in Dutch at: https://bit.ly/2YjQlsQ, p. 17 etc.; A recent article confirmed this statement based on a (limited) study that they had conducted. See: Alter Echos, ‘Conseil du contentieux des étrangers: deux poids, deux mesures’ , 4 March 2019, available in French at: https://bit.ly/2JeVzRK.

[76] Myria, Contact meeting, 20 March 2019, available in French: https://bit.ly/306X4GF, 319-329.

[77] CALL Activity report 2022, available in Dutch and French at: http://bit.ly/3nQHrmA, 29.

[78] CALL Activity report 2023, available in Dutch and French at: https://tinyurl.com/3rec62sr.

[79] Article 39/82(4) Aliens Act; Article 39/57(1) Aliens Act.

[80] Articles 39/82 and 39/83 Aliens Act.

[81] Article 39/82(4) Aliens Act.

[82] ECtHR, Josef v. Belgium, Application No 70055/10, Judgment of 27 February 2014, para 103 – the case concerns an expulsion following a so-called regularisation procedure for medical reasons (article 9ter Aliens Act), but the Court’s considerations are valid for all annulment procedures concerning risks of Article 3 ECHR violations.

[83] UNHCR, Accompagnement juridique des demandeurs de protection internationale en Belgique, September 2019, available in French at: https://bit.ly/35G2h9s, 7.

[84] Article 39/67 Aliens Act.

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

[86] The law determines cassation appeals to be admissible only (1) if they invoke a violation of the law or a substantial formal requirement or such a requirement under penalty of nullity, in as far as the invoked argument is not clearly unfounded and the violation is such that it could lead to the cassation of the decision and might have influenced the decision; or (2) if it falls under the competence and jurisdiction of the Council of State, in as far as the invoked argument is not clearly unfounded or without subject and the examination of the appeal is considered to be indispensable to guarantee the unity of the jurisprudence (Article 20 Acts on the Council of State).

[87] Article 33 Reception Act.

[88] Article 508/1-508/25 Judicial Code.

[89] UNHCR, Accompagnement juridique des demandeurs de protection internationale en Belgique, September 2019, available in French at : https://bit.ly/35G2h9s, 44.

[90] Article 508/14 Judicial Code.

[91] E.g. the Dutch speaking Brussels Bar Association is much more stringent in appointing a lawyer upon their own request if another one had been appointed already before. This causes a lot of disputes between the bureau for legal assistance of that bar association and lawyers or bureaus for legal assistance of bar associations from other districts.  

[92] For an overview of the full nomenclature, please consult the Ministerial Decree of 19 July 2016, available at: http://bit.ly/2jAdVzs.

[93] Example: before the entry into force of the Ministerial Decree of 19 July 2016, a lawyer would receive 15 points for a procedure before the CGRS (which represented 25 euros per point). Currently, the lawyer receives a basis of 3 points plus 1 point per started hour of the interview he or she attended. A lawyer can receive a maximum of 11 points for a first appeal in asylum cases. For a second or subsequent asylum application, the lawyer will no longer receive the basis points unless the CGRS takes an admissibility decision on the new application or unless the lawyer can prove the examination of the new elements (as required in subsequent asylum applications) had taken up a considerable amount of time.

[94] Art. 2 of the Royal Decree of 20 December 1999 holding executive measures concerning the remuneration of lawyers in the context of second line legal assistance and concerning the subvention for the costs linked to the organisation of bureaus for legal assistance, available in Dutch at: https://bit.ly/3ogXLri.

[95] Orde van de Vlaamse Balie, ‘Begroting justitie: OVB waakzaam positief’, 24 March 2018, available in Dutch at: https://bit.ly/2HxAeCm.

[96] Order of Flemish Bar Associations, ‘Value of a point in second line legal aid is finally legally enshrined’, 24 April 2023, available in Dutch at https://tinyurl.com/mwpn92bd.

[97] UNHCR, Accompagnement juridique des demandeurs de protection internationale en Belgique, September 2019, availabe in French at : https://bit.ly/35G2h9s, 7.