Author
So far, the legal provisions relating to detention under the recast Reception Conditions Directive have not been transposed. Although the provisions can still be applicable due to the exceeding of the transposition deadline, the failure of the recent reform to transpose these provisions is a missed opportunity in this regard.
The 2002 Royal Decree on Closed Centres provides for the legal regime and internal organisational guidelines. The detention centres are managed by the Immigration Office, not by Fedasil as are the open reception centres. An informal group of several Belgian human rights organisations active in the field of administrative detention of migrants (see Access to detention facilities), released a report on the state of detention centres for administrative detention in Belgium. Caritas, Vluchtelingenwerk Vlaanderen, Ciré and others worked together to produce this report, which was the first time in 10 years a similar report had been published.[1] In 2019 the same NGO group also published a report focusing on vulnerability in detention.[2] It does not concern the detention conditions as such. Still, it addresses certain relevant topics such as the profiles of the detainees, the legality control on detention, the right to family life etc. In 2021, a formal Coalition of NGOs accredited to visit detention centers was created; it was named “Move: Beyond detention of migrants”. The visitors of Move continue to visit all detention centres in Belgium weekly, which enables them to confirm that the findings in these previous reports are still relevant at the moment of writing. In 2022, JRS Belgium published a monitoring report of the detention conditions in the centres, with a specific focus on the centres of Merksplas, Brugge, Caricole and the FITT-unit that they visit every week.[3]
Overall conditions
The most essential basic rights of the asylum seeker are guaranteed by the Royal Decree on Closed Centres, including its amendment by the Royal Decree of 7 October 2014 which has established a complaints mechanism. The managing director of the centre has broad competences to limit or even refuse the execution of most of these rights if he or she deems this necessary for the public order or safety, to prevent criminal acts or to protect the health, morality or the rights of others.[4] A whole range of measures of internal order, disciplinary measures, measures of coercion and body search can be imposed by the managing director of the centre, and in some case by other staff members.[5] The Immigration Office organises training for the security personnel at the detention centres on the use of coercion, as provided for by law.[6] Within the first year of employment, each member should get a 3-day course on the theoretical aspects and techniques of coercion, followed by a refresher course with situational practices of 3 hours every third year afterwards. These are given by an internal Immigration Office instructor. Also, training sessions on dealing with aggression and on intercultural communication are organised.
On arrival at the centre, every asylum seeker is subjected to a search.[7] The search is aimed at verifying whether the asylum-seeker is in possession of objects or substances that are prohibited or dangerous to himself, other residents, the staff or the security of the centre.[8] The search shall not exceed the time necessary for this purpose and the asylum seeker is obliged to fully cooperate.[9] The search can be done in several different ways such as by using a metal detector or other screening equipment, by thoroughly touching the body over the clothes or by having an asylum seeker undress completely in order to enable a thorough search of the clothing.[10] It is carried out by two members of the staff having the same gender as the asylum-seeker.[11] If prohibited or dangerous objects or substances are found as a result of the search, they shall be taken into custody, made available to the competent authorities or, with the consent of the asylum seeker, be destroyed.[12] After the security screening, the asylum-seeker must use the sanitary facilities, unless this is not appropriate for medical or safety reasons.[13] The person concerned must cooperate in a medical examination, after which, if necessary, appropriate medical treatment will follow.[14]
For every new resident, an administrative record is opened. Every document which can be deemed useful for the identification and the processing of the administrative record shall be taken into custody for the duration of the stay in the detention centre.[15] The asylum seeker has the right to inspect these documents and is allowed to keep a copy, unless it has been established that the documents are false or forged, in which case they are handed over to the judicial authorities.[16] Upon arrival, every asylum seekers is entitled to one free national phone call of minimum ten minutes.[17]
Upon arrival, every asylum seeker receives a brochure that provides an overview of his rights and obligations during his stay in the detention centre, as well as the possibilities in the field of medical, psycho-social, psychological or religious assistance.[18] A more general brochure is also distributed informing him of the right to appeal against detention, the possibilities to make a complaint about the conditions of detention, the possibilities to obtain assistance from a non-governmental organization and to seek legal advice.[19]
The Royal Decree on Closed Centres characterises daily life in the detention centres as being collective during daytime.[20] Detention facilities have separated rooms or wings for families and single women, including at the border. In sanitary and sleeping facilities, single women and men are separated; in sanitary installations, only staff members of the same sex are present.[21] For persons who appear not to be able to adapt to the collective regime, the managing director can decide to adopt other specific measures e.g. a specific “room regime”.[22] The other isolation regimes are the medical isolation and the disciplinary isolation. Migrants can be placed in disciplinary isolation in case of the following infringements: damage to goods, theft, threats, beatings, escape, sexual assault and weapon possession[23] or when a migrant commits the following infringements three times: insults to staff or fellow residents, entering restricted areas, sale-purchase between residents, possession of prohibited substances, disobedience to orders, disturbing the peace or safety and disregard of obligations.[24] In principle, the isolation can last a maximum of 24 hours, with a possibility of extension to 72 hours.[25] In case of assault of staff, the duration is immediately brought to 72 hours with a maximum extension up to 7 days.[26] It happens nonetheless that the legal regime applicable to the isolated person changes throughout isolation period (from a specific room regime to disciplinary isolation) which ends up to isolation period longer than the legally prescribed duration.
Against each decision taken on the basis of the aforementioned Royal Decree, the detained person can file a complaint to the ‘Commission of complaint’. The complaint is written either in one of the official Belgian national languages or in the occupant’s mother tongue (no translation is necessary). The complaint is signed and dated by the detainee who lodges the complaint, so a third party (witness, NGO visitor or lawyer) cannot lodge it in his place. The detained migrant can file his complaint with the Secretariat of the Commission or he/she can also file a complaint with the director of the centre where he is detained, who will then transmit the complaint to the Secretariat. This second option is generally preferred by the detainees. The complaint must be filed within five days from the day after the day on which it can be considered established that the complainant has actual knowledge of the facts or the decision giving rise to the complaint. Most of the complaints are declared inadmissible. But if the complaint is well-founded, the Commission can either issue a recommendation, annul the decision taken, or propose a sanction against the staff member. The lodging of a complaint does not suspend the expulsion measures or their execution. Because the whole system lacks transparency and independence, it is considered to be an ineffective redress mechanism for migrants people in detention.[27]
Each centre has a social service which is charged with the psychological and social supervision of the asylum seeker during his stay in the detention centre and prepares rejected asylum-seekers for their possible removal.
3 meals a day are provided, special diets can be delivered on medical prescription, pork is never to be served and alcohol is prohibited.[28] The asylum seekers get the opportunity to wash themselves on a daily basis and toiletries are at their disposal free of charge.[29] The asylum seeker can have clothes delivered at their own expense, but the centre is to provide free clothing in case he does not dispose of appropriate clothing.[30]
In practice, conditions vary from one centre to another. The Government has announced the replacement of the centre in Bruges, as the condition of the current centre is deemed ‘very bad’ (old building, deficient air-cooling system, broken sanitary, etc.)[31] The government has announced that a budget has been made available to address the most urgent renovations. By 2030, a new centre in the neighbouring commune of Jabbeke will replace the centre in Bruges.[32]
Not only in Bruges, but also in other detention centres, there are some issues. During the COVID-19 pandemic, migrants were often placed in medical isolation to prevent other persons’ contamination. In 2021, at least 2288 persons were placed in medical isolation, most of whom were in quarantine due to COVID-19. The rooms in the medical wing are described as bare and having only one window. In some detention centres, there is a television, toilet and washbasin in the room, in some others (e.g. Bruges) the room is common to 10 people with bulk beds.
As far as the isolation cells are concerned, they are described as being extremely bare with grey walls and a small window. The room is lined with a bed with anti-tearing sheets and an aluminium toilet. Furthermore, persons placed in isolation no longer have access to the telephone, only contact with a lawyer remains possible.
Activities
In detention centres asylum seekers have access to open air spaces. In some centres they are allowed to get out in open air during daytime whenever they want. In other centres this is strictly regulated. A minimum of two hours of exercise outside is provided.[33]
Assistance to religious services or non-confessional counselling is guaranteed in the detention centres and the provision of assistance by a minister of a non-officially recognised cult can be requested.[34]
The asylum seeker has an unlimited right to entertain correspondence during the day.[35] Writing paper is provided in the centre, as is assistance with reading and writing by staff members.[36] When there are specific risk indications, this correspondence can be subjected to the control of the managing director of the centre, with the exception of letters directed to the lawyer or to certain public authorities and independent human rights and public monitoring instances.[37] Calls can be made at the asylum seekers’ own expenses during daytime to an unlimited extent.[38] In some detention centres, the residents are allowed to use their cell phone at all times.[39] In most centres there exist the possibility to consult the internet in a specially designed room. Since residents could not receive visitors during the COVID-19 pandemic, several detention centres decided to extend the internet moment and to allow resident to use their own smartphone in a private room to be able to facetime with their family and friends.[40]
The social service of the centre has to organise sport, cultural and recreational activities.[41] In most centres, fitness activities are offered and sporting tournaments of volleyball, soccer and basketball are organised on a regular basis. However, due to COVID-19, contact sports were prohibited, these sports could not be offered in the detention centres in 2021. Every centre has a library at the disposal of the inhabitants, which usually provides a diverse range of books in different languages.[42] Newspapers and other publication can be purchased at their own expense.[43] They are also entitled to follow radio and television programmes.[44] In several detention centres, the rooms are equipped with a television.[45]
According to Article 74/8(4) of the Aliens Act, asylum seekers who are detained in closed centres could be allowed to perform work for remuneration. However, to date, the implementing decree laying down the conditions is still missing. In practice, certain centres provide the possibility for residents with little to no financial resources to do cleaning chores in order to obtain call credit, cigarettes, hygiene products or sweets.[46]
Health care and special needs
Access to health care is legally determined to “what the state of health demands” and every centre has its own medical service to provide for it with independent doctors.[47] The doctor attached to the centre can decide that a person has to be transferred to a specialised medical centre.[48] In practice, persons detained may have difficulties in accessing and obtaining sufficient medical care, as was made clear by the ECtHR in the case of Yoh-Ekale Mwanje v Belgium, in which the Court found that Belgium violated Article 3 ECHR for not providing the necessary medical care.[49] At the same time, the quality of the health care available depends a lot on the medical infrastructure and individual doctor in the centre.
When the medical doctor finds a person not suited for detention or forced removal because it could damage his or her mental or physical health, the managing director of the centre has to transfer these observations to the Director-General of the Immigration Office, who has to decide on the suspension of the detention or removal measure or ask for the opinion of the medical doctor of another centre, and in case of a dissenting opinion for that of a third one.[50] After every failed attempt of removal when forced was used, the doctor has to examine the person concerned.[51] The person is not automatically provided with a medical report after examination. There have been no reports of the way this is applied in practice to date. No other procedures to identify other vulnerable individuals in detention is provided for by law.
If the person so wishes, he/she can request an external doctor to examine him/her in the detention centre at his/her own costs.[52] This does not happen very frequently in practice as there are few voluntary doctors to come to the centres (some of them being geographically isolated) and the detained persons do not usually have the financial means to pay for it.
Following Belgium’s conviction by the ECtHR in its Paposhvili judgment,[53] a new ‘special needs’ procedure was introduced specifically for persons placed in detention prior to their return. However, the procedure is still not laid down in an official decision.[54] The ‘special needs’ procedure foresees that, for each newcomer to a detention centre, the centre’s doctor fills out a medical certificate stating whether or not the person concerned suffers from an illness that could subject him/her to a risk of inhuman or degrading treatment in the context of return (which is contrary to Article 3 of the ECHR), or if additional medical examinations have to be carried out to determine this. If such a risk is identified by the doctor, a second examination will be conducted. The medical certificate is binding for the central service of the Immigration Office (MedCOI) which must ensure that the recommended treatments are available and accessible in the country of return. If this is the case, return will be carried out. If this is not the case, the person concerned can appeal to the ‘special needs’ programme or be released. The ‘special needs’-programme offers individual assistance to vulnerable persons who return to their country of origin. Within this framework, their stay in a detention centre can be adapted to their needs, assistance can be provided for their return and, if necessary, assistance can be provided for the reintegration in their country of origin.[55] In 2021, 20 persons appealed to the special needs programme.[56]
The provision of medical assistance varies from centre to centre. It has been reported that in some centres, medical care is only for the purpose of repatriation and there is no budget for serious interventions. Transfer to the hospital for urgent medical treatment is rather exceptional. In some centres people complain about the fact that they only get painkillers and sleeping pills. A lack of adequate medical assistances for detainees with mental issues has also been reported.[57]
During their visits in the centres of Merksplas, Brugge and Vottem between 10 April and 14 May 2020, Myria observed that the medical facilities were not always adequate to deal with the COVID-19-crisis (a fortiori when isolation-cells were used to organise medical isolation), and that internal procedures varied between the different centres.[58]
Finally, the Royal Decree of 9 April 2007 on OOC regulates the functioning of the OOC for unaccompanied children. Specific measures are adopted to protect and accompany the children. During their stay of maximum 15 days, their contacts are subject to special surveillance.[59] During the first 7 days of their stay, they are not allowed to have any contact with the outside world other than with their lawyer and their guardian.[60] The modalities of the visits, outside activities, telephone conversation and correspondence are strictly determined in the house rules.[61] When a child is absent for more than 24 hours or where vulnerable children (i.e. under 13 years of age, children with psychological problems or victims of human trafficking) are absent without informing the staff, the police and the guardian or the Guardianship Service are alerted.[62]
[1] Vluchtelingenwerk Vlaanderen et al., Closed centres for foreigners in Belgium, January 2017, available in Dutch available at: https://rb.gy/ogaeap.
[2] Caritas, Ciré, JRS Belgium, Platforme Mineurs en Exil, Point d’appui and Vluchtelingenwerk Vlaanderen, Vulnerabilité et Détention en Centres Fermés, October 2019, available in French at : https://rb.gy/nl1yre.
[3] JRS Belgium, Monitoring report 2022, available in Dutch at: https://bit.ly/3X7r29c
[4] Articles 21, 25, 31, 41, 65 Royal Decree on Closed Centres.
[5] Articles 85-111/4 Royal Decree on Closed Centres.
[6] Article 74/8 Aliens Act and Royal Decree on the Use of Coercion for Security Personnel.
[7] Article 10 and 111/1 Royal Decree on Closed Centres.
[8] Article 11 Royal Decree on Closed Centres.
[9] Article 111/1 Royal Decree on Closed Centres.
[10] Article 111/2 Royal Decree on Closed Centres.
[11] Article 111/2 Royal Decree on Closed Centres.
[12] Article 11 and 111/3 Royal Decree on Closed Centres.
[13] Article 12 Royal Decree on Closed Centres.
[14] Article 13 Royal Decree on Closed Centres.
[15] Article 14 Royal Decree on Closed Centres.
[16] Article 14 Royal Decree on Closed Centres.
[17] Article 15 Royal Decree on Closed Centres.
[18] Article 17 Royal Decree on Closed Centres.
[19] Article 17 Royal Decree on Closed Centres.
[20] Article 83 Royal Decree on Closed Centres.
[21] Article 83 Royal Decree on Closed Centres.
[22] Article 83/1 Royal Decree on Closed Centres.
[23] Article 98, §2, 1° Royal Decree Closed Centres.
[24] Article 98, §2, 3° Royal Decree Closed Centres.
[25] Article 101, §1 Royal Decree Closed Centres.
[26] Article 101, §2 Royal Decree Closed Centres.
[27] CECLR (ex-Myria), La Commission des plaintes chargée du traitement des plaintes des personnes détenues en centres fermés (2004-2007), available in French at : https://bit.ly/3jxpGXF.
[28] Articles 79-80 Royal Decree on Closed Centres.
[29] Article 78 Royal Decree on Closed Centres.
[30] Article 76 Royal Decree on Closed Centres.
[31] Chamber of Representatives, Policy Note on asylum and migration, 4 November 2020, available in Dutch and French, available at: https://bit.ly/3sJdgMd, 34.
[32] Cd&v, ‘Nicole de Moor: “Plannen voor terugkeercentra worden bakstenen”’, available in Dutch at: http://bit.ly/406MpsE.
[33] Article 82 Royal Decree on Closed Centres.
[34] Articles 46-50 Royal Decree on Closed Centres.
[35] Articles 19 Royal Decree on Closed Centres.
[36] Articles 22 and 23 Royal Decree on Closed Centres.
[37] Articles 20-21/2 Royal Decree on Closed Centres.
[38] Article 24 Royal Decree on Closed Centres.
[39] Jaarverslag Vottem en Caricole.
[40] Jaarverslag Caricole.
[41] Articles 69-70 Royal Decree on Closed Centres.
[42] Caricole annual report 2021.
[43] Articles 71-72 Royal Decree on Closed Centres.
[44] Article 72 Royal Decree on Closed Centres.
[45] Annual report CIH, CIM, Vottem en Caricole
[46] Annual report detention centres Caricole, Vottem, CIM.
[47] Article 53 Royal Decree on Closed Centres.
[48] Article 54-56 Royal Decree on Closed Centres.
[49] ECtHR, Yoh-Ekale Mwanje v. Belgium, Application No 10486/10, Judgment of 20 December 2011. Not the threatened deportation at an advanced stage of her HIV infection to Cameroon, her country of origin, without certainty that the appropriate medical treatment would be available was considered in itself to constitute a violation of Article 3 ECHR, but the delay in determining the appropriate treatment for the detainee at that advanced stage of her HIV infection.
[50] Article 61 Royal Decree on Closed Centres.
[51] Article 61/1 Royal Decree on Closed Centres.
[52] Article 53 Royal Decree on Closed Centres.
[53] ECtHR, Paposhvili v. Belgium, Application no. 41738/10, 13 December 2016.
[54] Myriadoc, Terugkeer, detentie en verwijdering van vreemdelingen in België, December 2018, available in Dutch: https://bit.ly/2S3ooBM, 30.
[55] Myriadoc, Terugkeer, detentie en verwijdering van Vreemdelingen in België, November 2017, available in Dutch: https://bit.ly/3l5zW9V.
[56] 13 in Merksplas, 4 in Brugge and 3 in Holsbeek.
[57] Ciré, Vulnerabilité et detention en centre fermé, October 2019, available in French at: https://rb.gy/nl1yre.
[58] Myria, Bezoeken van Myria aan de gesloten centra van Merksplas, Brugge en Vottem tussen 10 april en 14 mei 2020 in het kader van de COVID-19-pandemie, available in Dutch at: https://bit.ly/2Ye1J9y, 12.
[59] Articles 7 and 10 Royal Decree on OOC.
[60] Article 10 Royal Decree on OOC.
[61] Article 10 Royal Decree on OOC.
[62] Articles 10 and 11 Royal Decree on OOC.