Author
The law provides for access to free legal assistance for the purpose of judicial review of the detention order. Free legal assistance is provided for in the Judicial Code under the same conditions as for other asylum-related procedures. A rebuttable presumption applies whereby the person detained is considered to not have financial means to pay for legal assistance (see section on Regular Procedure: Legal Assistance). The Royal Decree on Closed Centres also explicitly guarantees legal assistance for every resident of a detention centre and free and uninterrupted contact between them and their lawyer.[1]
In the detention centres in Vottem and Bruges, a legal permanence of specialised lawyers used to be organised by the bureau for legal assistance of the bar association. Their service is mainly limited to assigning a Pro-Deo lawyer who is not present but has to ensure free legal assistance. The other centres have no first line legal assistance service, and the assignment of a lawyer depends entirely on the social services in the centre.[2] The Move coalition coordinates a system of regular visitors that monitors migrants entering detention, provides them with free first line advice and refers them to an NGO for more specialised assistance if necessary.[3]
In practice, asylum seekers are often referred to inexperienced lawyers. Even if some bar associations, like the Brussels one, use lists of lawyers that have explicitly expressed interest in assisting detained asylum seekers, the lawyers on these lists do not have to meet specific qualification requirements. The system organised by the law does not offer sufficient means to enable lawyers to specialise themselves in migration and asylum law.[4] Move Coalition and its partners therefore propose the use of an appointment list of lawyers that are entrusted with legal aid in the detention centres, who will be subject to an assessment at the start that tests their knowledge of immigration law and afterwards to an annual/semi-annual assessment organised by the bar associations.[5] Due to recent changes in the way Pro Deo lawyers are remunerated, a decline in the number of beneficiaries of legal assistance by experienced lawyers had been noticed. There is currently a structural shortage of qualified legal aid.
Findings of the UNHCR in a 2019 report on access to legal aid for asylum-seekers pointed to difficulties experienced by asylum seekers in detention in accessing quality legal aid.[6] In some centres, only 40% of the detained migrants report to have had access to a lawyer (appointed by the bar or a private lawyer).[7] The quality of legal aid varies among the detention centres. Partnerships have been established between directors of certain detention centres and the bar associations of the judicial district in which the centre is located, leading to inequalities in the concrete implementation of the constitutional right to legal aid. For example in the centres of Vottem and Bruges, there is currently a first-line legal aid service organised by the Legal Aid Commission, however this is not the case in the other detention centres. The Move Coalition therefore recommends that the Royal Decree on Closed Centres shall include the obligation for the staff of the detention centres to ensure that every newly detained migrant from the first day of detention enjoys the effective assistance of a lawyer by providing information on the right to legal aid and by contacting the agency for legal aid.[8] It also recommends that the Royal Decree shall include the obligation for the directors of the detention centres to establish a first-line assistance service in their institution, to be held twice a week at fixed times.[9]
Legal assistance at the moment of arrest
Unlike in criminal matters, there is currently no legal safeguard that requires a lawyer to be present at the audition after arrest of asylum-seekers that can possibly be detained. On 16 November 2021, a legislative proposal has been submitted to embed the right to legal assistance of a lawyer for asylum seekers which can possibly be detained. The presence of a lawyer at this stage of the procedure is necessary, inter alia because of the right to be heard. Respect for this right can be ensured by the presence of a lawyer since he can provide the asylum seeker with timely information on his family and socio-professional situation, as well as element concerning his physical and mental health and about the possible violation of human rights in case of return to his country of origin or transit.[10] It remains to be seen whether this will be adopted.
[1] Articles 62 and 63 Royal Decree on Closed centres.
[2] UNHCR Belgium, Legal assistance of applicants for international protection in Belgium, September 2019, available in Dutch at: https://bit.ly/38NjQWZ and in French at https://tinyurl.com/45vupyve, 25 and 43.
[3] The Immigration Office, in the context of its right to reply to the AIDA report, indicates that in detention centres where no first line legal assistance service is organised, detainees can get a pro bono lawyer assigned upon request. The Immigration Office is currently in the process of organising this. It is sometimes noticed in the centres that some detainees have more than one lawyer assigned. Because of the fact that some detention centres have contacts with bar associations and others do not, there is unequal access to legal assistance for detainees in different centres. Although civil society organisations demand the organisation of first line legal assistance services in each detention centre, the Immigration Office emphasises that it supports this idea but that it does not have the competence to set this up, this being a responsibility of the bar associations.
[4] See all the findings in UNHCR, Accompagnement juridique des demandeurs de protection international en Belgique, September 2019, available in French at: https://bit.ly/3wRmwB2.
[5] Note pour un amélioration de l’aide juridique accessible aux justiciables dans les centres de détention pour personnes migrantes, Brussels 3 May 2022.
[6] UNHCR Belgium, Legal assistance of applicants for international protection in Belgium, September 2019, available in Dutch at: https://bit.ly/38NjQWZ and in French at https://tinyurl.com/45vupyve.
[7] Jaarverslag 2022 127bis.
[8] Move Coalition, Hervorming van het Belgisch Migratiewetboek – Zomer 2021, available in Dutch at: https://bit.ly/40qJZpK, 31.
[9] Move Coalition, Hervorming van het Belgisch Migratiewetboek – Zomer 2021, available in Dutch at: https://bit.ly/40qJZpK, 32.
[10] Move, Advies over een “Salduz”-wet voor vreemdelingen (parlementair document 55 2322/001), 7, available in Dutch at http://bit.ly/3YqXB3b.