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 remains concerned that this addition is still not sufficient to prevent arbitrary detention. It regretted that, contrary to Article 74/6 on detention on the territory, Article 74/5 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. This recommendation has not been taken into account yet.
In practice, standard motivations for the detention of asylum seekers at the border are being used, without properly taking into account their individual situation. This confirms the concerns on arbitrary detention formulated by UNHCR. Recent legislative changes have not been able to properly address this issue.
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.
Before the entry into force of the law, asylum seekers who had served a sentence or been placed at the disposal of the government were also detained during the asylum procedure, which had its legal basis in a specific article in the Aliens Act attributing this power to the Minister. With the new law this article has been withdrawn and this possibility is translated into Article 74/6(1)(4).
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 their responsibility has been accepted by that state. 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 was 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 remains possible if other grounds are met.
The objective criteria for determining a “risk of absconding” are set out in the amended 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.
The reform has been heavily criticised by civil society organisations for laying down 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 20 December 2017, the Court of Cassation ruled in the case of a Sudanese national who was detained in Belgium pending his expulsion to Sudan, while the detention decision explicitly stated that the applicant had to be detained “in order to issue a take back request to Italy”, where he had previously lodged an asylum application. The Court of Appeal of Brussels had followed the government’s argumentation that, in the absence of a new asylum application, the Dublin III Regulation was not applicable in relation to the detention of the asylum applicant. The Court of Cassation disagreed with the Court of Appeal and ruled that, in accordance with Article 18(2) of the Dublin III Regulation, the responsible Member State must take back “an applicant whose application is under examination and who made an application in another Member State or who is on the territory of another Member State without a residence document”. Therefore, the Court of Cassation concluded that the provisions of the Dublin III Regulation are applicable even in cases where a new application for asylum has not been introduced in the requesting Member State, including the provisions regarding the detention of an asylum applicant who is subjected to a take charge or take back request.
On 19 July 2019, Article 51/5/1 of the Aliens Act entered into force and implements 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 lead 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 the fact that they had contacted the Sudanese authorities to conduct an identification-mission in Belgian detention centres and the fact 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 current Secretary of State has responded as following:
“In light of the very specific facts of this case, I have decided not to request a referral to the Grand Chamber. I am thinking of the factual ambiguities surrounding the voluntary departure declaration and the situation created by the specific circumstances of the Sudanese identification mission.
Of course, I also take into account that in the meantime several changes have been made to the procedure. For example, after the facts to which this judgment relates, the practice of implicit asylum applications was already introduced, whereby the CGRS, at the initiative of the Immigration Office’, still conducts an investigation into international protection in a very limited number of cases in which the person concerned does not apply for asylum. Moreover, I will continue to support and expand the recently founded specialised unit of the Immigration Office which is responsible for supporting its personnel in the examination of art. 3 ECHR. In addition, I will examine with my services how we can be sure to meet the other elements cited by the Court, such as ensuring that, in practice, every person concerned receives correct and comprehensible information about their rights and rapid access to a lawyer.”
These ‘implicit asylum applications’, which are mentioned as a solution and whereby the authorities consider that an application has been “implicitly” lodged by people, who refuse to file for asylum, yet proclaim to fear return, can in fact, themselves, 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 expressed doubts as regards the compliance of this practice with the recast Asylum Procedures Directive.
 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 74/8 Aliens Act.
 Article 51/5 Aliens Act.
 CJEU, Case C-528/15 Al Chodor, Judgment of 15 March 2017.
 Court of Cassation, Decision No 9.17.1192.F, 20 December 2017.
 Before this legal amendment, such decisions could not be delegated by the Minister 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.