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.
The CGRS has the competence to:
- Grant or refuse refugee status or subsidiary protection status;
- Reject an asylum application as manifestly unfounded;
- Reject an asylum application as inadmissible;
- 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; 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. There is no sanction when this delay is not being respected. 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.
Where needed, the deadline can be prolonged by 3 more months.
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. This has not yet been applied in practice.
If the deadline is prolonged, the CGRS shall inform the applicant of the reasons and give a timeframe within which the decision should be expected.
In 2018, the CGRS had managed to process almost all backlog of cases. Due to the increase in the number of applications for international protection since the second half of 2018, however, the total work stock of the CGRS – i.e. the number of files for which the CGRS has not yet taken a decision – has steadily increased to 10,362 asylum files by the end of 2019. Out of them, 6,162 of these files can be considered as backlog cases, while 4,200 files are part of the normal work stock.
This results in longer waiting times for persons in the asylum procedure. While there is no information available on the average processing time of asylum claims in 2019, the CGRS was still processing a limited number of asylum claims lodged before 1 January 2018 at the beginning of December 2019. This mainly involves cases for which the CGRS had already taken a decision but that were sent back to the CGRS after being annulled by the CALL. As regards applications filed after 1 January 2018 the CGRS stated that, as a result of the significant increase in the number of applications since the second half of 2018, not all cases can be processed on the short term meaning that longer waiting periods will apply to these asylum applicants.
Prioritised examination and fast-track processing
The CGRS may prioritise the examination of an asylum application where:
- The applicant is detained or is subject to a security measure;
- The applicant is serving a sentence in a penitentiary facility;
- The Immigration Office or the Secretary of State for Asylum and Migration so requests; or
- The asylum application is manifestly well-founded.
In practice the examination is prioritised for applicants in detention and for applicants coming from safe countries of origin.
At least one personal interview by a protection officer at the CGRS is imposed by law. 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.
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. The CGRS has elaborated an interview charter as a Code of Conduct for the protection officers, which is available on its website.
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 instead request written submissions on why the status should not be ceased or withdrawn. In practice every person will be invited for a personal interview; however. 
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. 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. However, very rarely – and for practical reasons – “the language role” can be changed in the case of a subsequent application.
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. 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 Council of Alien Law Litigation (CALL), which in general does not take this element into consideration since it is impossible to prove that the interpreter deliberately or otherwise translated wrongly or had any interest in doing so.
In 2019, UNHCR identified a number of issues regarding the access and quality of interpretation. These issues seem to apply to all stages of the asylum procedure and concern the competent authorities, lawyers, social workers in reception structures as well as associations. UNHCR thus recommends to facilitate access to interpretation by clarifying the rules on interpretation and on how to find an interpreter. It also suggest to improve the current system by centralising the contact details of interpreters, standardising practices within the closed centres and providing clear information on the right to free interpretation under the Belgian legal aid system.
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, 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.
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. 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. The asylum seeker or his or her lawyer may provide comments within 8 working days after the reception of the file. 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.
Since June 2016 the CGRS conducts interviews through videoconference in some of the detention centres. This is the case for the closed centre of Merksplas, Bruges and Vottem. 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 are less positive about this approach and argue that it impedes the creation of a safe space. The videos themselves are not kept on file, and the CGRS uses the transcript following the interview as the basis. The asylum seeker and his or her 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 can be granted. The mere fact of not being familiar with this type of technology is not sufficient, however. In one case of December 2018, the CALL annulled a decision of the CGRS in which the applicant was interviewed through videoconferencing. The CALL noted that the personal interview which had been conducted by videoconference on 23 November 2018, was punctuated by numerous interruptions, thus demonstrating the poor quality of the hearing. Moreover, the applicant's psychological state required that the hearing should not take place in the form of a videoconference. It thus ordered the CCGRS to conduct a new interview in person.
Appeal before the CALL
The appeal has automatic suspensive effect in the regular procedure.
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.
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 necessary. All relevant elements have to be mentioned in the petition to the CALL. At the hearing, the parties and their lawyer can orally explain their arguments to the extent that they were mentioned in the petition. 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. 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.
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.
The CALL must decide on the appeal within 3 months in the regular procedure. There are no sanctions for not respecting the time limit. In practice, the appeal procedure often takes longer. In 2019, the average processing time (the total of the delays divided by the total number of files) was 243 calendar days or 8 months. 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 159 calendar days, i.e. approximately5 months).
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. 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. 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). On the other hand, it must be acknowledged that the quality of a lot of appeals submitted is often poor, especially if these are not introduced by specialised lawyers in the field.
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). This appeal is suspensive until a judgment is issued. 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.
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. 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) only– 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.
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 generally 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.
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.
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. The ECtHR decided that it was no longer necessary to examine the appeal and that the complaint should be struck out of the list of cases.
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. 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. 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. If the decision under review is annulled (“quashed”), the case is sent back to the CALL for a new assessment of the initial appeal.
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. 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.
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. 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.
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. In theory, only asylum seekers who lack sufficient financial means should be entitled to free legal assistance, but due to the aforementioned presumption, every asylum seeker will get a lawyer appointed to assist them in all the stages of the asylum procedure in practice.
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. 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.
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.
The nomenclature that determines the number of points for a lawyer’s intervention, and, as such, its remuneration, has been modified by a Ministerial Decree of 19 July 2016. In the previous version, lawyers received a certain amount of points per intervention of action. Since 1 September 2016 every point equals to one hour. Since 2018 the value per point was finally determined at €75.  This is still applied today.
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 proof 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. 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 2016 Ministerial Decree on Second Line Assistance has determined a list of points granted per service rendered.
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
+ 4 points
These developments certainly make 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.
Depending on the Bar Association, asylum seekers might experience problems when wanting to change “pro-Deo” lawyer. Some Bars do not allow a second “pro-Deo” lawyer to take over the case from the initially assigned “pro-Deo” lawyer. Although this limits abuses by lawyers acting in bad faith to a certain degree, this measure has also resulted in asylum seekers being subject to the arbitrariness of bad quality lawyers and has prevented experienced lawyers from assisting some in need of specialised legal assistance.
 Article 49/3 Aliens Act.
 Article 57/6(1) Aliens Act.
 Article 57/6(1)(2) Aliens Act.
 Article 57/6(3) Aliens Act.
 Article 57/6(5) Aliens Act sets out the reasons for terminating the procedure.
 Article 57/6(1) Aliens Act.
 Article 57/6(1) Aliens Act.
 Article 57/6(2) Aliens Act.
 Myria, Contact meeting, 16 January 2019, available in Dutch at: https://bit.ly/2HeyRXu, para 295.
 Article 57/5-ter(1) Aliens Act.
 Article 57/5-ter(2) Aliens Act.
 Article 13/1 Royal Decree on CGRS Procedure.
 Article 57/6/7(2) Aliens Act.
 Article 51/4(2) Aliens Act.
 Article 57/5-quater(1) Aliens Act.
 Articles 16-17 and 20 Royal Decree on CGRS Procedure.
 Article 57/5-quater(2) Aliens Act.
 Article 57/5-quater(3) Aliens Act.
 Myria, Contact meeting, 16 January 2019, available at: https://bit.ly/2Hj4pLJ, para 7.
 CALL, Decision No. 214344, 19 December 2018.
 Article 39/57(1) Aliens Act.
 Article 39/70 Aliens Act.
 Article 39/2 Aliens Act.
 Article 39/69 Aliens Act.
 Article 39/60 Aliens Act.
 Article 39/76(1) Aliens Act.
 ECtHR, Singh and Others v. Belgium, Application No 33210/11, Judgment of 2 October 2012.
 Article 39/76(3) Aliens Act.
 Myria, Contact meeting, 21 February 2018, para 27.
 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.
 Article 39/82(4) Aliens Act; Article 39/57(1) Aliens Act.
 Articles 39/82 and 39/83 Aliens Act.
 Article 39/82(4) Aliens Act.
 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.
 ECtHR, S.J. v. Belgium, Application No 70055/10, Judgment of 19 March 2015.
 Article 39/67 Aliens Act.
 Article 14(2) Acts on the Council of State.
 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).
 Articles 39/56 and 90 Aliens Act.
 Article 33 Reception Act.
 Article 508/1-508/25 Judicial Code.
 Article 508/14 Judicial Code.
 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.