Author
- Asylum seekers at the border
Asylum seekers can be detained at the border for an initial period of 2 months, which can under certain conditions be prolonged by consecutive periods of 2 months. The total duration of the detention cannot be longer than 5 months, unless the person poses a risk for public order or national security, in which case the detention can again be prolonged by periods of 1 month up to a maximum of 8 months.[1] In practice, however, after a month of detention at the border, the Immigration Office takes a new detention order based on Article 74(6) of the Aliens Act, which allows for longer detention measures in practice. The law establishes that asylum applicants at the border are to be admitted to the territory if the CGRS has not taken a decision within four weeks, or when the CGRS decides that further investigation is necessary.[2] However, being admitted to the territory does not automatically mean that the asylum applicant will be released from detention. In those cases, the Immigration Office often takes a new detention decision based on one of the grounds set out in Article 74/6(1) of the Aliens Act, which regulates detention on the territory (see Detention on the territory).[3]
As a consequence, asylum applicants who are held at the border generally spend more time in detention than other migrants in detention. No specific data are available regarding the duration of detention of asylum applicants. The overall average duration of detention of all persons detained in immigration detention in 2023 was 36 days. However, it should be noted that these numbers are influenced by some situations of extremely long detention durations. The median durations are not available.[4]
- Asylum seekers on the territory
The law provides for a maximum of a 2-month detention period for asylum applicants on the territory.[5] Detention can be prolonged for another 2 months for reasons of national security or public order.[6] After 4 months, a one-month prolongation is possible until 6 months maximum. The maximum duration of detention on territory therefore cannot exceed 6 months (2+2+1+1). The period of detention is suspended during the time provided to appeal the decision on the asylum application.
Both in case of detention at the border and detention on the territory, the maximum period of detention can in practice exceed the legally determined maxima of respectively 6 and 8 months each time a rejected asylum applicant refuses to board a plane. In such cases, a practice is applied by the Immigration Office on the basis of which the detention period is reset to zero.[7] Although this practice is criticised because it creates situations of very long detention measures (the absolute maximum duration being 18 months, following Article 15 of the Return Directive), it was confirmed by the Belgian Court of Cassation.[8] The case was then brought before the ECtHR in the Kabongo v. Belgium case. In that case, Miss Kabongo, a national of the Democratic Republic of Congo refused to board planes to Southern Africa five times. The Immigration Office took a new decision of detention for a period of 5 months, as a result of which Miss Kabongo was detained more than 10 months. In 2005, the ECtHR ruled that, considering the multiple attempts by the Immigration Office to remove Miss Kabongo from the territory and her systematic opposition to this, the practice could not be seen as a violation of Article 5 ECHR.[9]
- Asylum seekers under Dublin procedure
In case of detention of asylum applicants to determine the responsible Member State and secure a transfer in the context of the Dublin-procedure, detention may not exceed 6 weeks.[10] When a transfer decision is being appealed through an extremely urgent necessity procedure, the detention period starts again. This means that a new period of six weeks starts after the rejection of the appeal in the extremely urgent necessity procedure. Contrary to the Dublin III Regulation, the law does not mention that the detention should be as short as possible. Furthermore, when the asylum seeker refuses to board a plane or refuses to collaborate, the Immigration Office takes a new detention order based on another legal ground[11] which results in the start of a new period of detention. Consequently, it happens in practice that asylum seekers subjected to the Dublin procedure end up longer in detention than the 6 weeks period provided by law.
[1] Article 74/5 Aliens Act.
[2] Articles 57/6/4 & 74/5(4)(4) and (5) Aliens Act, as amended by the Law of 21 November 2017.
[3] See a more detailed explanation on this practice in Nansen, Vulnerability in detention: border procedures, fast-track procedure and videoconference (2019-2020), available in French here.
[4] Immigration Office, Annual Rapport 2023, available in French here (p.90) and in Dutch here (p. 87). (17 days in Caricole, 25 days in 127bis, 40 days in Bruges, 45 days in Merksplas, 53 days in Vottem and 38 days in Holsbeek.
[5] Article74/6 Aliens Act.
[6] Ibid.
[7] Gesloten centra voor vreemdelingen in België: een stand van zaken, December 2016, available in Dutch at: https://bit.ly/3DH0nZS.
[8] Belgian Court of Cassation, Application No° A.R. P.04.0363.F, nr. 173, Judgment of 31 March 2004.
[9] ECtHR, Nancy Ntumba Kabongo v. Belgium, Application No. 52467/99, Judgment of 22 June 2005, p 18-20.
[10] Article 51/5, §4 Aliens Act.
[11] Article 27 Aliens Act.