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 him or her and his or her lawyer.[1]
In the detention centres in Vottem and Bruges, a legal permanence of specialized lawyers used to be organised by the bureau for legal assistance of the bar association. Due to COVID-19, these permanences were stopped in Bruges and held by telephone in Vottem. Meanwhile the legal permanence of specialized lawyers have resumed both in the detention centre of Bruges and in that of Vottem. 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.
In practice, asylum seekers are often referred to inexperienced lawyers. Even if some bar associations, like the Brussels one, use short lists of lawyers that have expressed interest in assisting detained asylum seekers, these lists do not have 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.[3] 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 organized by the bar associations.[4] 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 Move Coalition for the Reform of the Migration Code in 2021 indicate that the access to quality legal aid remains difficult. In a report of 2016, it is stated that only 20% of the detained migrants has access to a lawyer.[5] 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.[6] 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.[7]
Legal assistance at the moment of arrestation
Unlike in criminal matters, there is currently no legal safeguard that requires a lawyer to be present at the audition after arrestation 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.[8] It remains to be seen whether this will be adopted.
[1] Articles 62 and 63 Royal Decree on Closed centres.
[2] UNHCR Belgium, Juridische Begeleiding van verzoekers om internationale bescherming in België, September 2019, available in Dutch at: https://bit.ly/38NjQWZ, 25 and 43.
[3] 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.
[4] Note pour un amélioration de l’aide juridique accessible aux justiciables dans les centres de détention pour personnes migrantes, Brussels 3 May 2022.
[5] CARITAS INTERNARIONAL, CIRE, Ligue des droits de l’Homme, MRAX, « Gesloten centra voor vreemdelingen – Stand van zaken », December 2016, 61
[6] Move Coalition, Hervorming van het Belgisch Migratiewetboek – Zomer 2021, 31, available in Dutch at: https://bit.ly/40qJZpK .
[7] Move Coalition, Hervorming van het Belgisch Migratiewetboek – Zomer 2021, 32, available in Dutch at: https://bit.ly/40qJZpK.
[8] Move, Advies over een “Salduz”-wet voor vreemdelingen (parlementair document 55 2322/001), 7, available in Dutch at http://bit.ly/3YqXB3b.