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 an administrative detention centre and free and uninterrupted contact between them and their lawyer.[1]
In Vottem, a legal permanence of specialised lawyers is 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 each 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]
There is currently a structural shortage of qualified legal aid. In practice, asylum applicants 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 applicants, 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 partners therefore propose the use of an appointment list of lawyers that are entrusted with legal aid in the administrative detention centres, who would be subject to an assessment at the start to test their knowledge of immigration law and afterwards to an annual/semi-annual assessment organised by the bar associations.[5].
Findings by the UNHCR in a 2019 report on access to legal aid for asylum-applicants pointed to difficulties experienced by asylum applicants in detention in accessing quality legal aid.[6] In the majority of the centres, less than 50% of the detained migrants had a lawyer (appointed by the bar or a private lawyer).[7]
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 interview after apprehension of asylum-applicants that can possibly be detained.[8]
[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 2023 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 internationale en Belgique, September 2019, available in French at: https://bit.ly/3wRmwB2.
[5] Note pour une 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 French here.
[7] Annual reports 2024 of the centres (43% in Brugge, 55% in Merskplas, 47% in 127bis, 29% in Caricole and 50% in Vottem; no data for Holsbeek).
[8] Civil society advocates that 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 applicant 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. See Move, Advies over een ‘Salduz’-wet voor vreemdelingen (parlementair document 55 2322/001), 7, 29 April 2022, available in Dutch here.