Author
- Families with minor children
After long political discussions, the prohibition of the detention of (families with) minor children was legally enshrined by the law introducing a ‘proactive return policy’ that entered into force on 20 July 2024.[1] Since September 2020, the previous government had already agreed to no longer detain families with children in detention centres in practice, but this was not legally enshrined yet. The Aliens Act now explicitly stipulates this prohibition of child detention. Families with minor children can only be held in ‘return houses’. The rules stipulating the functioning of these return houses need to be further developed through a Royal Decree.[2]
The law does not guarantee that families are held together on the basis of the principle of ‘family unity’. As such, it is possible that one adult of the family is detained in a detention centre in order to pressure the family to collaborate with their return.[3] The Council of State has condemned this practice.[4]
The prohibition on child detention does also not exclude that persons who arrive at the border and declare themselves as a minor are held there as long as there is a doubt on their minority.[5]
Less than a year after the prohibition on child detention was legally enshrined, the new minister for Asylum and Migration has indicated that the prohibition might be revised during the new legislative period.[6]
- Unaccompanied minors
The detention of unaccompanied children is explicitly prohibited by law.[7] Since the entry into force of the Reception Act, unaccompanied children are in principle no longer placed in detention centres.
When they arrive at the border, they are assigned to a so-called Observation and Orientation Centre (OOC) for unaccompanied children.[8] An exception to the legal prohibition to detain unaccompanied children is when the border control officers have doubts as to whether an unaccompanied child arriving at the border is a minor. In such a case, the unaccompanied persons claiming to be minors are held in detention for the duration of their age assessment procedure.[9] This can sometimes take more than a week. In 2019, 3 children whose age was tested during detention were considered 15 years old after the test and had thus wrongly been held in detention.[10] In 2023, 6 persons (no information as to whether or not they were asylum applicants) declared to be minors while being detained. Four of them were indeed found to be minors after a bone scan and were ultimately released.
There is no similar provision in the law prohibiting the detention of unaccompanied children which are arrested on the territory during the age determination procedure in case of doubt about their minority. In practice, however, they are also detained in the detention centres.[11]
Other vulnerabilities in detention
No other vulnerable categories of asylum applicants are excluded from detention by law. Besides the consideration of the minority of age, no other vulnerability assessment is made before deciding on the detention of asylum applicants, especially at the border.[12] This is confirmed by the Belgian Refugee Council Nansen in a report of 2020 about vulnerabilities of migrants in detention facilities.[13] The ECtHR has moreover recognised that persons in detention are vulnerable in se.[14] The issue is also recognised by the UNHCR and the Committee against Torture which both state that alternatives for detention should be provided for victims of torture, victims of serious physical, psychological or sexual violence, victims of trafficking, pregnant women, the elderly and persons with disabilities.[15] By contrast, such persons are considered vulnerable by the Reception Act to meet their specific needs.[16] One of the recommendations of the Move Coalition is to introduce a procedure for the screening of the vulnerability of the persons that will be detained and to attach appropriate consequences to a finding of vulnerability such as alternatives to detention.[17]
[1] Article 74/9, §1 Aliens Act.
[2] Article 74/8, §2 Aliens Act.
[3] The Immigration Office, in the context of its right to reply to the 2024 AIDA update, notes that a family member is only separated from the family and brought to a closed detention centre based on reasons related to security or public order and to protect the safety of the other family members.
[4] Council of State 28 april 2016, nr. 234.577, available in French here.
[5] Article 41, §1 Reception Act.
[6] De Standaard, ‘Minister of Asylum and Migration Anneleen Van Bossuyt – We might have to revise the prohibition on detention of families with children’, 18 March 2025, available in Dutch here: “Return is more easy to organise from a closed centre. Today, we cannot hold families with children in those closed centres. However, if we see in two years that this results in a lack of increase of departures and we see difficulties with returns of families with children, we might have to revise this.”
[7] Article 74/19 Aliens Act.
[8] Article 40, 41, §1 Reception Act.
[9] Article 41, §2 Reception Act.
[10] Figures confirmed by the Immigration Office in January 2020.
[11] Information communicated to Myria during the visit to CIB on 24 May 2019 and during the visit of the centre 127bis on 27 may 2019.
[12] The Immigration Office, in the context of its right to reply to the 2023 and 2024 AIDA reports, notes that the police has the necessary knowledge about vulnerabilities and that upon arrival in a detention center, the psycho-medical service proceeds to a medical examination in order to establish vulnerabilities, in which case a follow-up program is put in place.
[13] Nansen, ‘Vulnerabilites in detention and access to the asylum procedure : report’, November 2020, available in French at https://tinyurl.com/2k3dh6v5. ‘NANSEN emphasises that in practice vulnerability is not an obstacle to detention in closed centres. NANSEN notes that the detention measure does not contain any grounds concerning vulnerability in specific cases. In addition, no systematic individual assessment is carried out before detention or the extension of detention, to determine whether the principles of proportionality and proportionality and necessity are respected. Furthermore, it is not clear to what conditions of detention are appropriate when a person is deemed vulnerable. Finally, there does not appear to be an effective procedure for identifying vulnerability in and, as a result, many people in vulnerable situations are not identified and their specific identified and their specific needs are therefore not taken into account.’ (translated from French): Nansen, Vulnerabilities in detention : motivation of detention titles, November 2020, available in French at https://tinyurl.com/37fvm5up.
[14] ECtHR, Riad and Idiab v. Belgium, Application No. 29787/03, Judgment of 24 January 2008, §99; ECtHR, S.D. v. Greece, Application No. 53541/07, Judgment of 11 June 2009, §47; ECtHR, Mahmundi v. Greece, Application No. 14902/10, 31 July 2012, §62.
[15] HCR, Principes directeurs du HCR en matière de détention, ligne directrice 9.1, CPT, fiche thématique Rétention des Migrants, mars 2017, available at: https://bit.ly/3l6ej9z, 33; CPT, Fiche thématique rétention des migrants, Mars 2017, https://rm.coe.int/16806fbf13, 9.
[16] Article 36 Reception Act.
[17] Move Coalition, Hervorming van het Belgisch Migratiewetboek, zomer 2021, 18-19, available in Dutch at: https://rb.gy/psdhxe.