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 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.
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 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 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 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 responded as follows:
“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.
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.
According to the Immigration Office, mid 2021, a specific cell with 3 lawyers was created within the Immigration Office in order to see whether the detention and/or expulsion would violate article 3 ECHR. It is not clear yet how this specific cell is supposed to intervene in specific cases and despite a few recent attempts by the lawyer of the Move Coalition (a coalition of NGOs accredited to visit the closed centres; see Border Monitoring) so far, it was not possible to involve the group of lawyers in an individual detention case.
 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, 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.