Grounds for detention

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The law contains grounds for detaining asylum applicants during the asylum procedure as set out by Article 8(3) of the recast Reception Conditions Directive.

Border detention

Article 74/5 of the Aliens Act determines that a third country national who tries to enter the country without disposing of the necessary documents and applies for asylum at the border, can be detained while waiting to receive either a denial of entry, or to be granted access to the territory.

Although Article 74/5 Aliens Act also states that a foreigner cannot be maintained for the sole reason that they have submitted an application for international protection, asylum applicants arriving at the border without travel documents are systematically detained. The Immigration Office, in the context of their right to reply to the 2023 and AIDA report updates, notes that in the context of asylum applications at the border, every case is treated, and any detention decision taken, on an individual basis taking into account all elements available in the administrative file and that in case a person is detained when applying for asylum at the border, this is not because they have applied for asylum but because they do not meet the entry requirements. Civil society organisations, however, observe that by far every person applying for asylum at the border is detained, and this based on a decision that contains a mostly standardised motivation. This issue has been confirmed by the Committee Against Torture (CAT)^[1] and by the Belgian Refugee Council Nansen.^[2]

UNHCR is also concerned that the legal provisions do not sufficiently prevent arbitrary detention at the border. It regretted that, contrary to Article 74/6 of the Aliens Act on detention on the territory, Article 74/5 of the Aliens Act on detention at the border does not contain any guarantees such as the test of necessity, the obligation to consider the possibility of less coercive measures, the need for an individual assessment and an exhaustive list of reasons for detention. UNHCR therefore recommended the incorporation of the same guarantees in Article 74/6 and 74/5 of the Aliens Act. This recommendation has not been taken into account.

In 2024, 753 persons applied for asylum at the border.^[3]

Detention on the territory

On the basis of Article 74/6(1) of the Aliens Act, an asylum applicant may be detained on the territory, where necessary, on the basis of an individualised assessment and where less coercive alternatives cannot effectively be applied:

1. In order to determine or verify their identity or nationality;
2. In order to determine the elements on which the asylum application is based, which could not be obtained without detention, in particular where there is a risk of absconding;
3. When they are detained subject to a return procedure and it can be substantiated on the basis of objective criteria that they are making an asylum application for the sole purpose of delaying or frustrating the enforcement of return;
4. When protection or national security or public order so requires.

Article 51/5 Aliens Act allows for the detention of asylum applicants during the Dublin procedure if there are indications that another EU Member State might be responsible for handling their asylum claim. An asylum applicant can be detained during the process to determine which Member State is responsible for the application, and after determination, to transfer the person to the responsible Member State. Detention in those cases is only allowed if there is a considerable risk of absconding, and only if the detention is proportionate and no other less coercive measure can effectively be applied.

The objective criteria for determining a ‘risk of absconding’ are set out in Article 1(2) of the Aliens Act, in line with the Al Chodor ruling of the CJEU.^[4] They include situations where the applicant:

1. Has not applied for a permit after irregularly entering the country or has not made an asylum application within the 8-day deadline set out by the law;
2. Has provided false or misleading information or false documents or has resorted to fraud or other illegal means in the context of an asylum procedure or an expulsion or removal procedure;
3. Does not collaborate with the authorities competent for implementing and/or overseeing the provisions of the law;
4. Has declared his intention not to comply or has already resisted compliance with measures including return, Dublin transfer, liberty-restrictive measures or alternatives thereto;
5. Is subject to an entry ban in Belgium or another Member State;
6. Has introduced a new asylum application immediately after being issued a refusal of entry or being returned;
7. After being inquired, has concealed the fact of giving fingerprints in another Dublin State;
8. Has lodged multiple asylum applications in Belgium or one or several other Member States, which have been rejected;
9. After being inquired, has concealed the fact of lodging a prior asylum application in another Dublin State
10. Has declared – or it can be deduced from their files – that he or she has arrived in Belgium for reasons other than those for which he or she applied for asylum or for a permit;
11. Has been fined for lodging a manifestly abusive appeal before the CALL.

Civil society organisations have argued that it concerns overly broad criteria for the determination of a risk of absconding.^[5] In practice, it has been reported that the third criterion is applied but in combination with other criteria such as the first and seventh, especially for those applicants who conceal that they have applied for asylum in another Member state. Detention orders have also been based on a combination of the criteria in paragraphs 1, 3 and 7; or 2, 4, 8 and 10; or 2, 8 and 9, etc. These criteria to ascertain whether there is a ‘risk of absconding’ have to be distinguished from the 6 hypotheses set out at Article 51/5 §6 Aliens Act where the asylum applicant is presumed not to collaborate with the authorities and as a consequence, the transfer period to the responsible EU Member State is extended from 6 to 18 months (See Dublin).

On 19 July 2019, Article 51/5/1 of the Aliens Act entered into force and implemented the relevant articles on detention of the Dublin III Regulation for applicants who did not apply for asylum in Belgium yet could be subject to a take-back decision because of a previous application that was registered in another Member State.^[6]

[1] CAT, Concluding observations on the fourth periodic report of Belgium, 25 August 2021, §29: ‘Although the State party explained that minors and their families are not detained at the border, the Committee remains concerned that almost all other applicants for international protection are detained, under Article 74/5 of the Aliens Act, and that this practice is accepted by the Constitutional Court, which considers it necessary for effective border control (decision of 25 February 2021). However, the Committee notes that Article 74/5 of the Aliens Act is intended to transpose into national law Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013, which allows for the detention of applicants only when it proves necessary and on the basis of an individual assessment of each case, if other less coercive measures cannot be applied effectively. The Committee also recalls that the European Court of Human Rights considered the practice of automatic detention at borders in the case Thimothawes v. Belgium and ruled that the routine detention of asylum applicants without an individual assessment of their specific needs was problematic (arts. 11 and 16).’

[2] Nansen, Vulnerabilities in detention : motivation of detention titles, November 2020, available in French at https://tinyurl.com/37fvm5up: ‘NANSEN remarque que la mesure de détention ne contient pas de motivation concernant la vulnérabilité dans des cas spécifiques. De plus, aucune évaluation individuelle systématique n’a lieu avant de procéder à la détention ou à la prolongation de la détention, pour déterminer si les principes de proportionnalité et de nécessité sont respectés.’

[3] Immigration Office, Monthly statistics – December 2024, available in Dutch here and in French here.

[4] CJEU, Case C-528/15 Al Chodor, Judgment of 15 March 2017.

[5] De Wereld Morgen, ‘Nieuw wetsontwerp asielwetgeving betekent grote achteruitgang voor mensen op de vlucht’, 3 July 2017, available in Dutch here.

[6] Before this legal amendment, the Minister could not delegate such decisions to a staff member of the Immigration Office.