Regular procedure

Belgium

Country Report: Regular procedure Last updated: 08/04/22

Author

Vluchtelingenwerk Vlaanderen Visit Website

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, which is the competent determining authority, is exclusively specialised 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 to 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 take a decision 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 his or her obligations.[7]

Where needed, the deadline can be prolonged by 3 more months.[8] If the deadline is prolonged, 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] This has not yet been applied in practice.[11]

As in 2020, the CGRS was unable to reduce the backlog of pending cases in 2021. As a result, the total work stock – i.e. the number of files for which the CGRS has not yet taken a decision – has steadily increased to from 12,633 pending cases in 2020 to 15,685 asylum files by the end of 2021. Out of them, 11,485 of these files can be considered as backlog cases, while 4,200 files are part of the normal work stock.[12] This results in longer waiting times for persons in the asylum procedure. Throughout 2021, the average processing time of cases by the CGRS was 266 days, counting from the moment the file was sent to the CGRS until the first decision by the CGRS.[13]

Aiming to clear the backlog in all stages of the asylum procedure, the Secretary of State announced both an audit of the asylum authorities (CGRS, Immigration Office, Fedasil and CALL) and the recruitment of 700 new staff members in these services.[14] The results of the audits are expected in the summer of 2022. In June 2021, the CGRS published a vacancy for the recruitment of new protection officers.[15]

Prioritised examination and fast-track processing

The CGRS may prioritise the examination of an asylum application where:[16]

  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 having filed a subsequent application for international protection, non-accompanied minors, applicants having obtained a protection status in another EU member state and applicants coming from safe countries of origin. Currently, applicants residing in reception centres are also given priority over applicants staying at a private address.[17]

Personal interview

At least one personal interview by a protection officer at the CGRS is imposed by law.[18] The interview may be omitted where:

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

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

or (c) where the CGRS deems it can take a decision on a subsequent application based on the elements in the file.[19]

Generally, for every asylum application the CGRS conducts an interview with the asylum seeker, although the length and the substance of the questions 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.[20] The CGRS has elaborated an interview charter as a Code of Conduct for the protection officers, which is available on its website.[21]

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.[22] In practice, however, these persons will be invited for a personal interview.[23]

In the context of the COVID-19 sanitary measures, the CGRS has granted the refugee status on the basis of the elements in the file – without conducting a personal interview – in more than 500 cases in the course of 2020. No exact statistics are available. A large part of these cases (more than 50%) concerned Syrian nationals. However, other nationalities also qualified for this approach. Although there are no fixed criteria to determine whether or not a case qualifies for this approach, it concerns cases containing manifestly sufficient elements in order to recognise the person concerned, and not containing any problematic elements such as indications that the person might have to be excluded from international protection or indications that the person already obtained a protection status in another EU member state. The application is investigated on the basis of the elements and documents provided by the applicant, internet and social media research etc.[24] The CGRS continued this approach throughout 2021, during which refugee status was granted without conducting a personal interview in around 1,000 cases, mostly concerning applicants from Burundi, Syria and Eritrea.[25]

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 not sufficient.[26] In that case, the examination of the application is assigned to one of the two “language roles” without the applicant having any say in it and generally according to their nationality; the different nationalities being distributed to one of the two “roles”. In the case of a subsequent application, the same “role” as in the first asylum procedure is selected.[27] However, very rarely – and for practical reasons – “the language role” can be changed in the case of a subsequent application.[28]

In general, there is always an interpreter present who speaks the mother tongue of the asylum seeker. Sometimes, if the person speaks a rare language or idiom, this can be problematic and then an interpreter in another language can be proposed. During and after the interview at the CGRS, the interpreter has to respect professional secrecy and act according to certain rules of deontology. A brochure on this Code of Conduct is also made available on the CGRS website.[29] The quality of the interpreters being very variable, the correct translation of the declarations, as they are written down in the interview report, is sometimes a point of contention in the appeal procedures before the CALL, which in general does not take this element into consideration since it is impossible to prove that the interpreter translated wrongly. If applicants have requested the copy of the interview report and did not communicate their remarks on the translation of their declarations to the CGRS, they are considered to have approved the content of the report (see below).

Recording and transcript

There is no video or audio recordings of the interview, but the transcript has to faithfully include the questions asked to and declarations of the asylum seeker; the law demands a “faithful reflection” thereof,[30] which is understood to be different from a verbatim transcript. The CGRS protection officer has to confront the asylum seeker with any contradiction in his or her 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.[31]

The asylum seeker or his or her lawyer may request a copy of the interview report, together with the complete asylum file. This should be done within 2 working days following the interview.[32] 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.[33] The asylum seeker or his or her lawyer may provide comments within 8 working days after the reception of the file.[34] In such a case scenario, the CGRS will take them into consideration before making 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 considered to agree with the report of the interview.[35]

Since June 2016 the CGRS conducts interviews through videoconference in some of the closed detention centres. In 2019, this practice was extended to all 6 detention centres. It was especially common for people residing in the Transit centre Caricole near Brussels Airport. 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.[36] The asylum seeker and his or her lawyer could request for an interview in person when they could provide elements of vulnerability that would justify such a request. In exceptional cases this was granted. However, the call for the interview did not mention the possibility of requesting an in-person interview.[37] The mere fact of not being familiar with this type of technology is not sufficient to be granted an in-person interview.

In the light of the sanitary measures taken to halt the spread of COVID-19, on 18 November 2020, the CGRS announced it would also switch to interviews through videoconference for people residing in open reception centres. They envisaged to introduce this interview method in a limited number of open centres at first, to then generalise it. Though taken in the context of the pandemic, the decision explicitly put forward the aim of introducing interviews through videoconference structurally on the long term, as an alternative to in person interviews.

A number of civil society organisations introduced an urgency procedure before the Council of State to suspend this decision. In its judgment nr. 249 163 of 7 December 2020,[38] the Council of State suspended the decision of the CGRS on the grounds that it is not the competent authority to alter the modalities of the personal interviews. Given that the conditions of the personal interview are regulated in a Royal Decree,[39] any changes to these conditions need to be adopted by Royal Decree or law too, in order to ensure compliance with the necessary democratic safeguards. Following this judgment, the CALL annulled a decision by the CGRS in the case of an asylum seeker residing in a closed centre, for the same reason as the judgment of 7 December 2020: the lacking of a legal basis providing for videoconferences.[40]

The CGRS has, however, continued organising interviews by videoconference in the closed centres in 2021, in 72 cases with high recognition chances. If any indications for refusal of a protection status arose, a live interview was organised. In the meantime, the CGRS has contributed to the redaction of a Royal Decree, creating a legal basis for asylum interviews by video conference in closed centres. In January 2022, the Royal Decree was ready but still being checked on its GDPR compliance before publication.[41]

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.[42] When the applicant is being detained in a specific place in view of his or her 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 thus detained person appeals against an inadmissibility decision after a subsequent application for international protection.[43] 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), and for appeals in cases in which the CGRS has applied the accelerated procedure (see Accelerated procedure).

As of 1 March 2022, the appeal petition can no longer only be introduced by registered letter but also digitally through the digital application ‘J-BOX’.[44] 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 memoire, 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.[45] For applicants in detention, the introduction of the petition remains possible in the hands of the director of the detention facility.[46] Finally, the Royal Decree allows the CALL to send procedural documents (such as invitations for hearings, judgements, …) to the parties through J-BOX.[47] 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.[48]

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 to negatively affect especially applicants not assisted by a lawyer, that 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 violating the general principle of law of access to justice. The Council of State indicted 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.[49] 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 get access to the appeal procedure without seeking help of a Belgian lawyer.

Effects of the appeal

The appeal has automatic suspensive effect in the regular procedure.[50]

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 negative 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.[51]

The CALL has no investigative powers of its own, meaning that it must take a decision on the basis of the existing case file. Therefore, in case it considers important information to be lacking, it has to 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.[52] Parties and their lawyers are then invited to an oral hearing, during which they can orally explain their arguments to the extent that they were mentioned in the petition.[53] The CALL is also obliged to take into consideration every new element brought forward by any one of the parties with an additional written note before the end of the hearing.[54] Depending on how the CALL assesses the prospects of such new elements leading to the recognition or granting of an 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 on the basis of the elements in the administrative file. If one of the parties does not agree 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 with the judgment, which is subsequently confirmed by a final judgment.[55]

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

  • Both parties can at all times ask to apply a purely written procedure.[56] Both the counterpart and the judge have to agree. In that case, the judge decides a date on which 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.[57] During this period the parties’ right to demand to be heard in case of application of the purely written procedure in application of article 39/73, §2 Aliens Act, is replaced by the possibility to introduce a pleading note. After having received the provisional decision containing the reasons why the written procedure is being applied as well as the judgement the CALL makes on the basis of the elements in the administrative file both parties have 15 days to introduce a pleading note, arguing why they do not agree with the content of the decision. If none of the parties asks to be heard, they are supposed to consent with the judgment, which is subsequently confirmed by a final judgment. If one of the parties introduced a pleading note, the judge can either take a decision, taking in to account 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.[58] The judge can decide to apply a purely written procedure in accelerated procedures with full judicial review and in suspension procedures in extremely urgent necessity.[59]

In the preparatory works of this new legislation, it is explained that the expansion of the possibilities of applying the written procedure aims at clearing the backlog of cases pending at second instance, and rendering the procedure more efficient. In particular, 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’.[60]

The CALL must decide on the appeal within 3 months in the regular procedure.[61] There are no sanctions for not respecting the time limit. In practice, the appeal procedure often takes longer. In 2021, the average processing time (the total of the delays divided by the total number of files) was 177 calendar days or 6 months.[62] The median (the delay in the middle and thus less influenced by extremely long or short delays, what makes it a more reliable indicator) of the processing time was 152 calendar days, i.e. approximately 5 months).[63]

Decisions of the CALL are publicly available.[64]

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.[65] It is also important to note that there is still a big difference in jurisprudence between the more liberal Francophone and the stricter Dutch chambers of the CALL.[66] 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).[67] On the other hand, the quality of appeals is not always guaranteed, especially if these are not introduced by specialised lawyers.

The Immigration Office will give an 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

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

As opposed to 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).[68] This appeal is suspensive until a judgment is issued.[69] It demands a swift decision of the CALL within 48 hours; the time limit is extended to 5 days where the expulsion of the person is not foreseen to take place until 8 days after the decision.[70]

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 has condemned Belgium once more for violation of Article 13 ECHR, in its February 2014 Josef judgment.[71] The ECtHR calls the annulment appeal system as a whole – whereby suspension has to be requested simultaneously with the annulment for it to be activated (by requesting provisional measures)– too complex to meet the requirements of an effective remedy, in order to avoid the risk of Article 3 ECHR violations. The case was struck out the ECtHR Grand Chamber’s list in March 2015, as the applicant had already been granted residence status.[72]

A study of UNHCR of 2019 states that several actors regret the rigidity and complexity of the asylum procedure in Belgium, which inevitably requires greater specialisation on the part of lawyers. While most of them generally agree that the time limits inherent in the asylum procedure are sufficient, they consider that the time limits inherent to accelerated procedures hamper the quality of legal assistance, especially in detention. In their view, the lack of transparency and the multiplication of procedures causes a significant loss of resources and time.[73]

On 16 January 2020, the ECtHR published a decision to strike the case of R.L. v Belgium out of the list after the parties reached a friendly settlement. The applicant, a Colombian national, claimed to have fled from Colombia due to threats by armed groups involved in drug trafficking. He claimed that his asylum application was not subject to a rigorous and careful examination and that an excessive burden of proof was placed on him by asylum authorities and, as such, he was denied the only full remedy available to him required by Article 13 in conjunction with Article 3 ECHR.[74] The Government has since then ensured that it would examine a new application for international protection by conducting a rigorous examination of all available evidence in relation to both the general situation in Colombia and to the individual circumstances of the applicant. Such an assurance is made to remedy the apparent lack of effective remedy available to the applicant.

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.[75] 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.[76] 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 chances of success or are only intended to prolong the procedure.[77] 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), with the exception of the Immigration Office stage.[78] 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.[79]

The asylum procedure itself is free of charge. As to the lawyer honorarium and costs, asylum seekers are legally entitled to free judicial assistance, but some prefer to pay anyhow.

There are two types of free legal assistance: first line assistance and second line assistance.[80] The competence for the organisation of the 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, there are also other public social organisations and NGOs providing this kind of first line legal assistance.

 Second-line legal assistance

“Second line assistance” is organised by the local bar association that exists in every 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, but 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 appointed 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 therefore 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 for 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.[81]

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 defined, in general depending on the level of income or financial resources and, with regard to specific procedures, on the social group they belong to. For asylum seekers and persons in detention, among others, there is a rebuttable presumption of being without sufficient financial resources. With regard to children, unaccompanied or not, this presumption is conclusive.  Adults should provide some proof of their lack of financial resources to support the aforementioned 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 the fact that the condition of having insufficient resources also applies in order 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 in order to refuse those manifestly unfounded requests, which have no chance of success at all.[82] 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 having been consulted by an asylum seeker, especially in case of subsequent asylum applications.[83]

Since September 2016 the second line assistance has changed significantly. The most important change – that has been ruled unconstitutional in 2018 – entailed the introduction of a ‘flat fee’. This meant that legal aid was no longer entirely free. In June 2018 the Constitutional Court annulled this legal provision, stating that such an obligation entailed a significant reduction of the protection of the right to legal aid, as guaranteed by Article 23 of the Constitution.[84]

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.[85] This nomenclature has been modified by a Ministerial Decree of 19 July 2016. The amount of points equals the estimated work time for each intervention, with one point equalling one hour of work. For example:

Procedure Points
Procedure at the CGRS Basis of 3 points
Presence during the interview + 1 point per started hour
Appeal at CALL (full jurisdiction) Basis of 5 points
Petition + 4 points

Lawyers do not have to prove the actual time spent to execute each intervention. It suffices to provide proof of the intervention itself. If the lawyer believes his or her work real work time exceeded the estimation put forward in the nomenclature by more than 100%, he or she 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.[86] To that end, the different bureaus of legal assistance have put in place an audit mechanism, in which the quality of the work of pro deo lawyers is checked by a group of volunteering lawyers. There is also a system of “cross control” in which the bureaus of legal assistance audit each other’s work. The results are sent to the Minister of Justice, who has the possibility to effect additional audits.

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). Since 1 September 2016 the lawyer receives a basis of 3 points plus 1 point per started hour of the interview he or she attended. For a first appeal in asylum cases, a lawyer can receive a maximum of 11 points. 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.

“Pro-Deo” lawyers receive a fixed remuneration by the bureau for legal assistance, which are 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.[87] This is still applied today.

In theory, costs can be re-claimed by the state if the asylum seeker would appear to have sufficient income after all, but this does not happen in practice. The reform of 2016 certainly makes the “pro-Deo” remuneration system less attractive for 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. Closure of the case can only take place once all procedures are finished, which in reality is long after the actual interventions were undertaken by the lawyer. This legal aid funding appears to have an impact on 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.[88]

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 bad quality lawyers and has prevented experienced lawyers from assisting persons in need of 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] Myria, Contact meeting, 22 January 2020, available in French at: https://bit.ly/2VhsVE6.

[12] CGRS, Asylum statistics 2021: a survey, available at: https://bit.ly/3sA5oyn.

[13] Information provided by the CGRS, January 2022.

[14] Website of the secretary of state on asylum, Start of the audit of the asylum and migration services: Mahdi wants to shorten the procedures, 29 October 2021, available at: https://bit.ly/35FSOFd.

[15] CGRS, Protection Officer vacancy (update), available at: https://bit.ly/34oCWX5.

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

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

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

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

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

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

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

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

[24] Myria, Contact meeting, 20 January 2021, available in French at: http://bit.ly/3sE592s.

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

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

[27] Ibid.

[28] Myria, Contact meeting, 21 November 2018, available in Dutch at: https://bit.ly/2Rf4Sjo, para 3.

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

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

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

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

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

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

[35] Ibid.

[36] Myria, Contact meeting, 21 September 2016, available at: http://bit.ly/2kxOqOG, para 25.

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

[38] Council of State nr. 249.163, 7 December 2020, available at: https://bit.ly/3hzEyA2.

[39] Procedures before the CGRS (freely translated from Koninklijk Besluit van 11 juli 2003 tot regeling van de werking van en de rechtspleging voor het Commissariaat-generaal voor de Vluchtelingen en de Staatlozen)

[40] CALL judgment no. 247 396 of 14 January 2021.

[41] Myria, Contact meeting 19 January 2022, available in French and Dutch at https://bit.ly/3sy9SFN, 39.

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

[43] Ibid.

[44] 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.

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

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

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

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

[49] 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.

[50] Article 39/70 Aliens Act.

[51] Article 39/2 Aliens Act.

[52] Article 39/69 Aliens Act.

[53] Article 39/60 Aliens Act.

[54] 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.

[55] Article 39/73 Aliens Act.

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

[57]  Art. 39/73-3 Aliens Act.

[58] Art. 39/73-3, §§1-3 Aliens Act.

[59] Art. 39/73-3, §4 Aliens Act

[60] 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.

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

[62] Myria, Contact meeting, 20 January 2021, available in French at: http://bit.ly/3sE592s.

[63] Myria, Contact meeting 19 January 2022, available in French and Dutch at: https://bit.ly/3sy9SFN, 46.

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

[65] CALL, Report of activities of the year 2019, available in Dutch at: https://bit.ly/2YjQlsQ, 17 etc.

[66] 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.

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

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

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

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

[71] 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.

[72]  ECtHR, S.J. v. Belgium, Application No 70055/10, Judgment of 19 March 2015.

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

[74] EDAL, ECtHR, R.L. V. Belgium, Application No 15388/18, 16 January 2020, available in French at: https://bit.ly/2SZiXWb

[75] Article 39/67 Aliens Act.

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

[77] 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).

[78] Articles 39/56 and 90 Aliens Act.

[79] Article 33 Reception Act.

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

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

[82] Article 508/14 Judicial Code.

[83] E.g. the Dutch speaking Brussels Bar Association is much more stringent in appointing a lawyer upon his or her 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.  

[84] Constitutional Court, Decision No 77/2018, 21 June 2018, available in French at: https://bit.ly/2RNAd1D

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

[86] 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.

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

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

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