The law contains grounds for detaining asylum seekers during the asylum procedure as set out by Article 8(3) of the recast Reception Conditions Directive.
At the border, asylum seekers arriving without travel documents are automatically detained. The law states that a “foreigner cannot be maintained for the sole reason that he/she has submitted an application for international protection.”
UNHCR is concerned that this is not sufficient to prevent arbitrary detention. 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 practice, standard motivations for the detention of asylum seekers at the border are being used, without properly considering their individual situation. This confirms the concerns on arbitrary detention formulated by UNHCR. In its fourth periodic report on Belgium, the UN Committee against torture also formulated its concerns over the continued practice of systematic detention of asylum seekers at the border.
Detention on the territory
On the territory, an asylum seeker may be detained, where necessary, on the basis of an individualised assessment and where less coercive alternatives cannot effectively be applied:
- In order to determine or verify his or her identity or nationality;
- 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;
- When he or she is detained subject to a return procedure and it can be substantiated on the basis of objective criteria that he or she is making an asylum application for the sole purpose of delaying or frustrating the enforcement of return;
- When protection or national security or public order so requires.
Asylum seekers can also be detained during the Dublin procedure if there are indications that another EU Member State might be responsible for handling their asylum claim, but before that State has accepted their responsibility. Until the entry into force of the law in 2018, there was no objective criteria indicating a risk of absconding in case a Dublin transfer specified in Belgian law, as required by Article 2(n) of the Dublin III Regulation. As a result of the Al Chodor ruling of the CJEU, the Immigration Office stopped issuing detention orders on the basis of a risk of absconding in the context of Dublin procedures in 2017, while detention remained possible if other grounds were met.
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. They include situations where the applicant:
- 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;
- 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;
- Does not collaborate with the authorities competent for implementing and/or overseeing the provisions of the law;
- Has declared his intention not to comply or has already resisted compliance with measures including return, Dublin transfer, liberty-restrictive measures or alternatives thereto;
- Is subject to an entry ban in Belgium or another Member State;
- Has introduced a new asylum application immediately after being issued a refusal of entry or being returned;
- After being inquired, has concealed the fact of giving fingerprints in another Dublin State;
- Has lodged multiple asylum applications in Belgium or one or several other Member States, which have been rejected;
- After being inquired, has concealed the fact of lodging a prior asylum application in another Dublin State
- Has declared – or it can be deduced from his or her 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;
- 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. More particularly as regards third criterion, the provision is liable to wide interpretation and abuse insofar as there is no definition of “non-cooperation” with the authorities in the Aliens Act. In practice, it has been reported that the third criterion is being 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 titles 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.
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.
In its judgment M.A. v. Belgium of 27 October 2020, the European Court of Human Rights (ECtHR) ruled that the Belgian government had violated Articles 3 and 13 of the European Convention on Human Rights (ECHR) by insufficiently examining the individual circumstances of a Sudanese citizen in unlawful residence prior to his repatriation and by ignoring the temporary repatriation order issued by the Court of First Instance. The repatriation that leads to the Belgian conviction took place on 13 October 2017. The Sudanese citizen had retracted an earlier asylum application declaring his mistrust in the Belgian authorities given that they had contacted the Sudanese authorities to conduct an identification-mission in Belgian detention centres and that he did not get representation by a lawyer. In order to prepare his repatriation, the man was interrogated in Arabic by this Sudanese identification mission during a meeting where, he declared, no lawyer, interpreter or even a civil servant from the Immigration Office was present. At a later stage, the man did engage a lawyer who filed a unilateral request to the Court of First Instance to suspend the repatriation at least until his request to be released would be judged by court. This request was granted on 12 October 2017. However, on the 13 October 2017, the man was moved to the airport anyway where he was requested by an Arabic speaking person to sign a declaration to return voluntarily and to withdraw all pending appeals, before entering the plane.
When asked about the implications of this judgement for the Belgian practice, the previous Secretary of State for Asylum and Migration responded that the practice of implicit asylum applications had in the meantime already been introduced and that he would continue to support and expand the specialised Article 3 ECHR unit of the Immigration Office and ensure that every person concerned receives correct and comprehensible information about their rights and rapid access to a lawyer.
The practice of ‘implicit asylum applications’ means that the authorities consider that an application has been “implicitly” lodged by people, who refuse to file for asylum, yet proclaim to fear return. Consideration of such an implicit asylum application can result in a ban on the expulsion to the country of origin. The practice of implicit asylum applications can in fact, be considered as a worrisome procedure, e.g., in those cases where the implicit asylum application is used to open a Dublin procedure, thus enabling them to detain the person concerned for the purpose of the Dublin transfer in accordance with the Dublin Regulation. The European commissioner for Migration already expressed doubts as regards the compliance of this practice with the recast Asylum Procedures Directive. Other issues that are raised concern the lack of legal basis for the practice and the risk of a superficial examination of the application for international protection and the invoked fear under Article 3 ECHR.
This practice of “implicit asylum application” mainly concerned the specific target group of migrants in transit, who did not necessarily want to file a “formal” application for international protection in Belgium. While this category was the target of arrests and detention in 2019, from 2020 onwards, the government changed the policy of systematic detention previously applied to these profiles. As a result, this type of procedure was no longer observed.
As to the “article 3 ECHR check”, note that in practice, a specific questionnaire, also known as “Paposhvilli” in the jargon of the authorities, was introduced in 2019. This questionnaire must be filled out, before any decision to detain can be taken. It is not always guaranteed that the foreigner will be able to answer the questionnaire in the best possible way, since he or she is not in the presence of a lawyer and interpreters may be lacking (see Legal assistance at the moment of arrestation).
According to the Immigration Office, mid 2021, a specific cell with 3 legal experts was created within the Immigration Office in order to verify whether the detention and/or expulsion would violate article 3 and 8 ECHR.
The specific cell is charged with the following tasks:
- analysing the national and international case law on the justification of Articles 3 and 8 of the ECHR in expulsion decisions;
- review of the expulsion decisions of the foreigners detained in the detention centres. Such review is mainly based on the statements of the person concerned and the objective circumstances in the country of destination and the elements in the administrative file are taken into account;
- provide support in justifying expulsion decisions or with more general questions about Articles 3 and 8 ECHR and searching for information on the situation in a country;
- interviews with foreigners in detention centres either with a view to establishing their nationality in order to be able to assess the risk of violation of Article 3 in case of return, or with a view to obtaining additional information about the dangers invoked by the person concerned;
- organising trainings in order to raise awareness among the staff members of the Immigration Office of the importance of Articles 3 and 8 of the ECHR in their daily work. In this regard, a syllabus and training courses, which for example contain the legal requirements for the right to be heard, are available to them; and
- drawing up motivation keys to assist the services in making their decisions.
Figures provided by the Immigration Office show that in 2021, the special cell has analysed 1,131 files and has given its advice in 28 cases of which 7 concerned general questions and 21 were individual cases. Driven from their experience in contacting this so-called “article 3 cell” in some individual cases, the Move coalition (a coalition of NGOs accredited to visit the detention centres) finds that the unit is not easily reachable and the decision-making process in general lacks transparency.
 Article 74/5(1) Aliens Act.
 See also: Marjan Claes, Vasthouding van personen met een mogelijke nood aan internationale bescherming als uitzonderingsmaatregel na de wet van 21 november 2017, December 2019, available in Dutch at: https://bit.ly/36DloBA.
 Article 74/6(1) Aliens Act.
 Article 51/5 Aliens Act.
 CJEU, Case C-528/15 Al Chodor, Judgment of 15 March 2017.
 Before this legal amendment, the Minister could not delegate such decisions to a staff member of the Immigration Office.
 Information received by email from the cabinet of the State Secretary for Asylum and Migration
 “While we fully understand the challenges that this situation creates for Belgium, the Commission finds it difficult to share the interpretation that the claims by third country nationals of a risk of violation of non-refoulement in the context you describe can be considered as the “making” of an application for international protection within the meaning of Directive 2013/32/EU. However, there is no case-law on this specific matter and only the Court of Justice of the European Union can provide a final and binding interpretation of the EU acquis.”; see: Letter from EU Commissioner for Migration Avramopoulos to Belgian Secretary of State Francken, 2 July 2017.
 Myria, Analyse van het interim-verslag van de Commissie belast met de evaluatie va het beleid inzake de vrijwillige terugkeer en de gedwongen verwijdering van vreemdelingen (Commissie Bossuyt), October 2019, available in Dutch at:https://www.myria.be/files/Nota_Myria_-_Interimverslag_Commissie_Bossuyt.pdf 7-8; 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 12-13.
 MOVE Coalition, Advies over een “Salduz”-wet voor vreemdelingen (parlementair document 55 2322/001), available in Dutch at: https://rb.gy/97zzvo, 7.