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Articles 74/6 (detention on the territory) and 51/5 (detention under Dublin) of the Aliens Act refer to the need for less coercive alternative measures to be considered before imposing detention. As of 1 June 2021, a new department of ‘Alternatives to Detention’ was established within the Immigration Office, tasked with the development and application of alternative measures to avoid detention of persons in irregular stay.[1] The main activity of this department consists of the creation of Individual Case Management (ICAM) programs (see below). On 20 July 2024, a law introducing a ‘proactive return policy’ entered into force.[2] Among other things, the bill enshrines in the Aliens Act: 1) the duty to cooperate in the organisation of a transfer, expulsion, return or removal (this comprises forced medical examination in case of refusal); 2) case management by civil servants of the Aliens office in the context of a return or transfer procedure (ICAM procedure); 3) a listing of the preventive measures and the less coercive measures that can be taken by the authorities and 4) banning the detention of families with minor children in closed centres (see below). By doing so, the ‘proactive return policy’ has established a series of new ‘alternatives to detention’ next to the existing ones.
For detention at the border, the Aliens Act does not contain any reference to less coercive measures or to an individual assessment or the need to assess the necessity or proportionality of the detention measure prior to applying detention at the border. This contrasts with the case law of the courts, according to which the authorities have an obligation (based on Article 74/5 Alien Act) to seek out less coercive measures applicable to applicants for protection at the border.[3]
- Delay in leaving the territory
A first alternative to detention consists of the extension of the deadline for voluntarily leaving the territory.[4] The purpose of this extension is to allow the person to prepare for their departure. As a result, such an extension can only be granted if it is demonstrated that steps are being taken towards voluntary return, and that departure is feasible in a near future.[5] Figures show that this measure was only requested 9 times in 2019.[6] The annual report of the Immigration Office of 2023 does not contain any information concerning this measure which leads to the impression that it is not applied in practice any more or in very limited cases. The measure is subject to criticism. The criteria for granting the extension are not clear and fall under the discretionary power of the minister or his delegate.[7] Moreover, the possibility to request an extension of the deadline for leaving the territory is not mentioned in the order to leave the territory but only in the law.[8] Finally, the MOVE coalition notes that the possibility to postpone departure fails to address the issue of non-removable people[9].[10]
- Deposit
A second alternative available is the payment of a deposit. According to the government, this measure has not proved to be an effective alternative to detention given that it is difficult to determine an appropriate amount to be deposited and because international research confirms that this measure does not constitute an effective incentive for return in practice. As a result, this measure is not applied in practice.
- Reporting
After receiving an invite for an interview, families with a duty to report were asked to appear before the Immigration Office. The measure was applied from March until September 2008 but was discontinued after a few months as it bore no results in terms of increased chances of removal. The new law introducing a ‘proactive return policy’ again introduced the duty to report as both a preventive measure and a less coercive measure to detention (see below).
- Home accommodation
Specifically for families with (minor) children, two types of less coercive measures were set up: home accommodation in the context of an agreement under Article 74/9(3) of the Aliens Act and return homes (also called ‘family units’ or ‘FITT’ – see below). Currently, the coaching of families to return from their private homes is included in the ICAM coaching trajectories and is applied in a more intensive way.
- Return houses
Families with minors can be held in return houses, also called family units or ‘FITT’.[11] In the strict sense, the return houses are considered an alternative to detention since they are considered as open facilities. In practice however, families residing in return houses are subject to freedom of movement restrictions in a way that makes civil society organisations consider the return houses to not meet the conditions of a proper ‘alternative to detention’[12].[13] (see Return houses)
- Individual case management (ICAM)
After receiving an order to leave the territory, a migrant will be invited to a series of interviews, during which their file will be discussed with an ICAM-coach. The aim is to steer the person concerned towards a sustainable solution either in their country of origin or in another country where they have the right of residence, or in Belgium, and to put an end to their illegal stay in Belgium. If no options can be identified to obtain a residence permit in Belgium, the person will be guided towards a return procedure.[14] Attendance to these ‘ICAM interviews’ is mandatory. Not attending without giving valid justification can be considered as a ‘failure to cooperate’[15] with the return procedure which may, eventually, result in detention. The law explicitly states that failure to cooperate with the individual coaching trajectory can lead the Immigration Office to consider a less coercive measure inefficient[16] (see Return procedure).
- Preventive measures and less coercive measures
The new law introducing a ‘proactive return policy’ provides for the introduction of three ‘preventive measures’ which can be imposed during the period of voluntary return: 1) the presentation or deposit of identity or travel documents with the authorities; 2) the obligation to report to the police or the Aliens Office; and 3) house arrest. [17]
In addition, if the person fails to cooperate proactively with their return, the following ‘less coercive measures’ than detention may be used: 1) an obligation to report to the police or the Aliens Office and 2) house arrest. [18] These less coercive measures can only be applied as an alternative to detention if they are considered to effectively contribute to the removal or transfer of the person concerned. To assess the ‘effectiveness’ of the measure, the person’s past behaviour with regard to the obligation to cooperate as well as his or her family and financial situation will play an important role. In addition, the law lists certain situations in which it is presumed that a less coercive retention measure will not be effective in achieving return, removal or transfer.[19] Due to this strict legal framework, civil society actors such as the Move coalition fear that preventive or less coercive measures will rarely be applied in practice.
[1] Immigration Office, Alternatives to detention, available in Dutch here, in French here and in English here; consulted on 25 March 2025.
[2] Chamber of representatives, Law on proactive return policy, 12 May 2024, available in Dutch here and in French here.
[3] See, inter alia : Council Chamber Brussels, 16 April 2024, 24N001537, available here; Council Chamber Brussels, 26 April 2024, available here; Chamber of indictment Brussels,13 May 2024, 2024/2418, available here; Council Chamber Brussels, 28 May 2024, 24N001855, available here.
[4] Art. 74/14 Aliens Act.
[5] CALL, case n° 175.622 of 30th of September 2016.
[6] Commissie Bossuyt, Eindverslag van de Commissie voor de evaluatie van het beleid inzake vrijwillige terugkeer en de gedwongen verwijdering van vreemdelingen, September 2020, available in Dutch at: https://bit.ly/3RC5TTw, 57.
[7] Myria, Nota over het eindverslag van de Commissie Commissie belast met de evaluatie va het beleid inzake de vrijwillige terugkeer en de gedwongen verwijdering van vreemdelingen (Commissie Bossuyt), November 2021, available in Dutch at: https://bit.ly/3wRml8G, 14.
[8] Ibid.
[9] The MOVE coalition has written an extensive report about the problem of non-removable persons in Belgian detention centres: MOVE, ‘What future for non-removable persons on Belgian soil?’, June 2023, available in French (and a short version in Dutch) here.
[10] The Immigration Office, in the context of its right to reply to the AIDA 2023 and 2024 updates, notes that in principle, nobody is ‘non-removable’: even if a forced return is not possible, people could in many cases return voluntarily and independently, because even though certain embassies do not issue travel documents to the Belgian authorities in view of a forced returns, they might do so to the person concerned in view of a voluntary or independent return.
[11] This name is often used in practice and refers to the service of the Immigration Office that treats the cases of persons living in the family units.
[12] Platform of children on the move (Plate-forme mineurs en exil/Platform kinderen op de vlucht), ‘Return houses in Belgium: a full-fledged, efficient and child-friendly alternative to detention ?’, January 2021, available in French here and in Dutch here.
[13] The Immigration Office, in the context of its right to reply to the 2024 AIDA update, notes that other sources indicate family units as a “best practice”; see for example EMN, ‘The use of detention and alternatives to detention in the context of immigration policies in Belgium’, June 2014, available in English here; JRS Europe, ‘From Deprivation to Liberty: Alternatives to detention in Belgium, Germany and the United Kingdom’, December 2011, available in English here; P. De Bruycker et. al., ‘Alternatives to immigration and asylum detention in the EU – Time for Implementation’, January 2015, available in English here; FRA, ‘Eruopean legal and policy framework on immigration detention of children’, 2017, available in English here.
[14] Immigration Office, Annual Rapport 2023, available in French here (p. 63) and in Dutch here (p. 61).
[15] Article 74/22 §1 4° Alien Act.
[16] Article 74/28 §3, al. 3, 2° Aliens Act.
[17] Article 74/27 Alien Act.
[18] Article 74/28 Alien Act.
[19] Article 74/28 Alien Act.