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Following the ECtHR’s Kanagaratnam,[1] and Muskhadzhiyeva judgments,[2] the Secretary of State decided that from 1 October 2009 onwards families with children arriving at the border and not removable within 48 hours after arrival should be detained in a family unit, not in a detention centre. However, in August 2018, Belgium opened detention facilities for families with children.[3] Article 74/9(3)(4) of the Aliens Act allows for a limited detention of the families with children in case they do not respect the conditions they accepted in a mutual agreement with the Immigration Office to stay in their own house, and/or absconded from the return homes. The detention centre for families is located next to the 127bis repatriation centre near the Brussels National Airport. The Royal Decree of 22 July 2018 (amending the Royal Decree of 2 August 2002) establishes the rules for functioning the closed family units near Brussels International airport. [4]
Between August 2018 and April 2019, a total of 9 families with 20 children were detained. While the Council of State first suspended the Royal Decree in April 2019,[5] it later only annulled some provisions of the aforementioned Royal Decree, maintaining the possibility of detaining families with children for a maximum of 4 weeks.[6] A procedure before the European Court of Human Rights has subsequently been initiated to obtain the annulment.[7] A decision by the ECtHR concerning France of 22 October 2021 raises questions as to the lawfulness of the detention duration of 4 weeks. In that decision the ECtHR decided that the detention of a baby of 4 months for 11 days, constitutes an excessive duration in the sense of Article 3 ECHR.[8] However, since the judgment of the Council of State, no families with minor children are held at the 127bis detention centre.
In two decisions of March 2022, Belgium was condemned by the Committee on the Rights of the Child for having detained children in the family units of the 127bis repatriation centre.[9] The Committee recalled that the detention of any child because of their parent’s migration status contravenes the principle of the best interests of the child and that “detaining children as a measure of last resort must not be applicable in immigration proceedings”. The Committee moreover reminded Belgium of its obligation to use alternatives to detention. Belgium has already been condemned before by the ECtHR for the detention of children in closed centres that provided for inhumane living conditions.
In September 2020, the current government had agreed to no longer detain families with children in detention centres, as a matter of principle. New, alternative measures would be developed to avoid that this measure would be abused to make return impossible.[10] In the context of the ‘Migration Deal’ of 9 March 2023, the government has announced it would officially insert the prohibition of child detention in the law.[11]
The detention of unaccompanied children is explicitly prohibited by law.[12] 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.[13] This only applies to those unaccompanied children with regard to whom no doubts were raised about the fact that they are below 18 years of age and are identified as such by the Guardianship Service (see Asylum Procedure: Identification). In 2021, 4 unaccompanied children were transferred from the Caricole detention centre to the OOC.[14] Also, this OOC is legally considered to be a detention centre at the border, which means that the unaccompanied child is not considered to have formally entered the territory yet.[15] Within 15 calendar days, the Immigration Office has to find a durable solution for the child, which may include return after an asylum application has been refused. Otherwise access to the territory has to be formally granted.
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, unaccompanied are held in detention for the duration of their age assessment procedure.[16] This can sometimes take more than a week before this is rectified. 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.[17] In 2020, two minor boys were held in detention because of doubts about their declared age. Because the Belgian authorities did not want to carry out a bone test while the boys were in confinement for sanitary reasons (COVID-19), it eventually took 22 days before they were officially declared minors and released from detention. In 2021, 10 asylum-seekers were declared to be minors. This is a status quo with 2020, in which 8 asylum seekers declared to be minors of which 5 were found to be effectively minors after a bone scan.[18] There is no similar provision in the law for 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.[19]
For unaccompanied children, the average duration of detention in 2021 was 34,9 days, an increase due entirely to the fact that one person has stayed for 235 days (which was eventually found to be an adult). Without this person, the average stay of unaccompanied children was 13 days in 2021.
No other vulnerable categories of asylum seekers are excluded from detention by law. Besides the consideration of the minority of age, no other vulnerability assessment is made whatsoever before deciding on the detention of asylum seekers, especially at the border. In practice, the detention of vulnerable persons remains problematic. The ECtHR has moreover recognized that persons in detention are vulnerable in se.[20] The issue is also recognized 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.[21] By contrast, such persons are considered vulnerable by the Reception Act to meet their specific needs.[22] 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.[23]
[1] ECtHR, Kanagaratnam and Others v Belgium, Application No 15297/09, Judgment of 13 December 2011. The Court found a violation of Articles 3 and 5(1) ECHR due to the detention of a Sri Lankan asylum seeking (who was eventually recognised as a refugee) mother with three underage children for more than three months.
[2] ECtHR, Muskhadzhiyeva and Others v Belgium, Application No 41442/07, Judgment of 19 January 2010. The Court found a violation Articles 3 and 5(1) ECHR due to the administrative detention for one month of a Chechen woman and her four small children who had applied for asylum in Belgium while waiting to be expelled to Poland, the country through which they had travelled to Belgium.
[3] Chamber of Representatives, Policy Note on asylum and migration, 26 October 2018, available in Dutch and French, available at: https://bit.ly/2sJL8uz, 34.
[4] Arrêté royal du 22 juillet 2018 | Koninklijk besluit van 22 juli 2018.
[5] Council of State, Decision No 244.190, 4 April 2019.
[6] Council of State, Decision No 251051 of 24th of June 2021
[7] Vluchtelingenwerk Vlaanderen acts as one of the applicants in this procedure.
[8] ECtHR, M.D. et A.D. v. France, Application No. 5703518, Judgment of 22 October 2021.
[9] Committee on the Rights of the Child 24 March 2022, E.B. v. Belgium, CRC/C/89/D/55/2018, available in English at https://bit.ly/3nPf1cL and Committee on the Rights of the Child 22 March 2022, K.K. and R.H. v. Belgium, CRC/C/89/D/73/2019, available in English at https://bit.ly/43bY3VT.
[10] Chamber of Representatives, Policy Note on asylum and migration, 4 November 2020, available in Dutch and French, available at: https://bit.ly/3sJdgMd, 34.
[11] Move Coalition, One does not detain a child. Point., 21 March 2023, available in French and Dutch at http://bit.ly/3zAt5Jx.
[12] Article 74/19 Aliens Act.
[13] Article 40, 41, §1 Reception Act.
[14] Annual Report Caricole
[15] On the technicality of this legal fiction, see inter alia Council of State, Decisions No 102.722, 21 January 2002 and No 57831, 25 January 1996.
[16] Article 41, §2 Reception Act.
[17] Figures confirmed by the Immigration Office in January 2020.
[18] According to the Annual Report of the Immigration Office 26 migrants declared to be minors. For 12 of these 26 migrants, doubts were expressed about their age. 20 of these 26 migrants were effectively found to be minors.
[19] 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.
[20] 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.
[21] 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.
[22] Article 36 Reception Act.
[23] Move Coalition, Hervorming van het Belgisch Migratiewetboek, zomer 2021, 18-19, available in Dutch at : https://rb.gy/psdhxe.