Right to shelter and assignment to a centre
According to the Reception Act, every asylum seeker has the right to material reception conditions from the moment he or she has made his or her asylum application, that allow him or her to lead a life in human dignity.
There is no limit to this right connected to the nationality of the asylum seekers in the Reception Act. Asylum seekers from safe countries of origin will have a reception place assigned to them. EU citizens and persons who have a protection status in another EU country applying for asylum and their family members are entitled to reception as well, although in practice they are not accommodated by Fedasil (see Differential Treatment of Specific Nationalities in Reception). This means that they need to secure housing with their own means.
In theory, no material reception conditions, with the exception of medical care, are due to a person with sufficient financial resources. Expenses that have been provided in the context of reception can also be recovered in such cases. Nevertheless, no assessment of these financial resources or of the actual risk of destitution of the person concerned takes place at the moment of the intake. Also, in practice, the withdrawal of the material aid is only rarely applied, since Fedasil does not have the capacity to check the financial resources a person has. An exception applies to asylum seekers who have access to employment while being accommodated in reception centres, as they will have to contribute financially for their accommodation. A stable work contract can even lead to the withdrawal of the right to reception. The concept and means used for calculating financial resources, as well as the part to be contributed, are determined in a Royal Decree of 2011 (see section on Reduction or Withdrawal of Reception Conditions).
The Aliens Act provides that “registration” and “lodging” are two different steps in the asylum procedure. The Reception Act, however, now clearly provides that an asylum seeker has the right to shelter from the moment he or she makes the asylum application, and not only from the moment where the asylum application is registered, in line with the recast Reception Conditions Directive.
On November 2018 an “arrival centre” was established at the open reception centre “Klein Kasteeltje”, where all asylum applications have to be made and registered and where applicants are initially accommodated for minimum 3 days. Fedasil conducts an assessment of any specific reception needs that might arise there (e.g. medical needs) and designates a reception centre for the rest of the procedure. The length of stay in the arrival centre depends on how quickly Fedasil finds an adapted place in the reception network and on how many requests for international protection are made in one day. If there are more than 130 requests, Fedasil may assign a number of asylum seeker directly to another centre. There are currently 839 places in the arrival centre.
When an asylum seeker lodges his or her application, he or she gets a “proof of application” (“Annex 26”), and a document of Fedasil assigning him or her to a reception centre as a mandatory place of registration (“Code 207”). The applicant should in theory go to the assigned centre immediately. However, an asylum seeker can also choose to not accept the offered spot and decide to stay at a private address, but – in that case – he or she will only be entitled to medical care. His or her right to have the assistance of a pro bono lawyer may be affected as well; in case he or she lives with someone who has sufficient means and can afford a lawyer. The applicant can nonetheless always opt for material aid again, as long as his or her asylum procedure is pending.
The arrival centre Klein Kasteeltje faced significant difficulties in 2018 and 2019, mainly due to a lack of capacity both in the centre and in the overall reception system (see Types of accommodation). As a consequence of the shortage of places, the government had set a limited amount of asylum applications per day which was ruled to be in contradiction with national and international law by the Council of State. After this judgement all asylum seekers were thus accommodated on the day they made their application for international protection.
However, in January 2020, the government decided again to limit the right to reception of certain categories of asylum seekers. Through its Instructions on the 'Modalities relating to the right to material assistance of applicants for international protection with an Annex 26 quater or a protection status in another Member State' of 3 January 2020, Fedasil limits the material reception to medical assistance for two categories of applicants:
- applicants with a decision that designates another EU Member State as responsible for the asylum procedure on the basis of the Dublin III Regulation (Annex 26 quater), who have not been transferred to this competent Member State within the prescribed period, and who report back to the Immigration Office after the expiry of the transfer period in order to reopen their asylum procedure in Belgium. (see Right to reception: Dublin procedure)
- applicants who have already been granted international protection (i.e. refugee or subsidiary protection status) in another EU Member State and who make a new application for international protection in Belgium. (see Error! Reference source not found.).
This new policy was adopted following important issues of overcrowding of the reception network as well as the increase of applications for international protection made by these groups. According to Fedasil, a large proportion of applicants with a 26 quater also refuse to reside in the reception network or to go to the Dublin open return place, thus avoiding transfers to the competent Member State. The instructions have been applicable since 7 January 2020.
Both categories of applicants can be assigned 'a code 207 no show' by Fedasil after an evaluation by the dispatching desk of Fedasil is conducted. A “code 207 no show” is an administrative term which means that Fedasil limits the material assistance to the reimbursement of medical expenses. This means that applicants have to secure housing themselves during the entire asylum procedure and that they are not entitled to the other rights provided for in Article 2(6) of the Reception Act (i.e.. food, clothing, social assistance, the granting of a daily allowance, access to legal assistance, and interpreting services). Fedasils’ decision to limit material assistance has thus a significant impact on the applicants.
The function of the dispatichnig service of Fedasil is based on an assessment of the situation of applicants, which will pay particular attention to the capacity and availability for asylum authorities, individual background and needs of the applicant, and their network in Belgium. If the evaluation shows that the applicant did not stay in or left the reception network “presumably to abscond from the authorities under the Dublin procedure”, the dispatching desk may decide not to allocate a new reception place. Practice has shown that the refusal to grant reception conditions is categoric and of general nature, meaning that it does not take into account individual circumstances such as vulnerabilities nor whether a dignified standard of living will be ensured, in clear violation of article 4 of the Reception Act (see Reduction or withdrawal of reception conditions). Moreover, some of these decisions do not provide for a legal basis.
Since 2017, many migrants, mostly originating from Sudan and Eritrea, are sleeping in the park opposite to the (former) Immigration Office building. Many of them refuse to apply for asylum and are therefore not entitled to accommodation under the Reception Act. According to NGOs, they refuse to apply for asylum due to misleading information provided by the government and harsh and repeated police interventions. Moreover, some of them fear to be sent back to Italy or Greece under the Dublin III Regulation and some others have already obtained a protection status in another EU-country but wish to reach the United Kingdom. At the end of September 2017, several NGOs including Ciré, Artsen zonder Grenzen, Médecins sans frontières, Plateforme des citoyens and Vluchtelingenwerk Vlaanderen set up a humanitarian hub for these migrants, where they receive medical and psychological help, legal advice, clothes, and family tracing assistance. This hub is located near the Northern train station in Brussels and continues to provide aid.
In February 2019, MSF further demonstrated in a report that the mental health of the migrants that are resident in the Maximilian Park and at the Northern train station is negatively affected by a combination of fear of Dublin transfers and police interventions, inhumane living and reception conditions, discrimination and violence, and the lack of opportunities and support. These problems also prevent them to start an asylum procedure, or to try to obtain another legal status, according to a report written by Vluchtelingenwerk Vlaanderen, Ciré, Nansen vzw, Caritas International and Plateforme des citoyens.
Right to reception: subsequent applications
The Reception Act provides the possibility for Fedasil to refuse reception to asylum seekers who lodge a second or further subsequent asylum application, until their asylum application is deemed admissible by the CGRS. This is unless Fedasil is informed that they have a pending or granted request for a prolongation of the reception. Between the moment of the subsequent application and the admissibility decision by the CGRS , asylum seekers have the right to medical assistance from Fedasil and to free legal representation. Once the CGRS has deemed the application admissible, the right to reception is reactivated. Asylum seekers must then present themselves to the dispatching desk to be allocated a reception place.
When the asylum seeker has not obtained reception from Fedasil during the first stage of the procedure and the CGRS declares the subsequent asylum application inadmissible, he or she will not be entitled to reception during the appeal with the CALL.
Article 4 of the Reception Act is aligned with the recast Reception Conditions Directive and explicitly states that decisions which limit or withdraw the right to reception should be in line with the principle of proportionality, should be individually motivated and based on the particular situation of the person concerned, especially with regard to vulnerable persons. Health care and a dignified standard of living should be ensured at all times. According to the Constitutional Court this decision is only legal in cases of abuse of the asylum procedure, e.g. when the person applies for asylum for the sole purpose of extending the right to reception.
In practice however Fedasil almost systematically refuses to assign a reception place to subsequent applicants until their asylum application is declared admissible by the CGRS. Labour Courts have ordered Fedasil at multiple occasions to motivate such decisions individually and to consider all elements of the case. As a result, subsequent applicants often obtain reception after challenging such decisions in front of courts. The Federal Mediator also drew attention to this problem in his annual report of 2015 and 2016. Although Fedasil motivates the decisions better – more individually – since the last months of 2017 it is clear that the policy is still to not grant reception in most cases and that vulnerability is still mostly not taken into account.
Right to reception: Dublin procedure
During the examination of the Dublin procedure by the Immigration Office, asylum seekers are entitled to a reception place. However, Fedasil limits the right to reception conditions to the period until a negative Dublin decision (26 quarter) is issued and the delay on the order to leave the territory has expired. or until the travel documents are delivered if the asylum seeker confirms his or her willingness to collaborate with the transfer but cannot execute the decision yet for reasons beyond his or her own will. Fedasil considers this practice in line with the Cimade and Gisti judgement of the CJEU, The Labour Courts of Brussels and Antwerp have overruled these instructions in individual cases, as they rely on a strict interpretation of the Cimade judgment, by ordering Fedasil to provide shelter until the Belgian state effectively executes this transfer decision itself, unless it gives clear instructions as to when and where the asylum seeker has to present him or herself for this. Currently, asylum applicants subject to a Dublin transfer decision (26 quarter) are accommodated in an open return place and the return track procedure will apply, as described below.
After the maximum time period allowed by the Dublin Regulation to transfer the asylum seeker to the responsible Member State has passed, Belgium is responsible for the application by default and a reception place is re-assigned when the person presents him or herself to the Immigration Office and the Immigration Office has reopened the first application (see Dublin). However, following the introduction of new instructions on 3 January 2020, Fedasil can now refuse to accommodate persons who fall under the responsibility of the Belgian state by default due to the failure to carry out the transfer in time. As explained above, the dispatching service of Fedasil must make an assessment of the situation of the applicant for the placement in reception (see Right to shelter and assignment to a centre).
In a decision of 22 January 2020, the Labour Court of Brussels condemned Fedasil for applying these new instructions to an applicant subject to a Dublin transfer (with a 26 quater). He had left the shelter after receiving the annex 26 quater and communicated his new address to the Immigration Office. When the six months deadline for the transfer expired, the applicant reported back to the Immigration Office. Fedasils’ decision refers to article 4(1) of the Reception Act, which foresees that Fedasil may limit or withdraw the material assistance if an applicant refuses, does not use, or leaves the assigned mandatory place of registration without informing Fedasil or, if permission is required, without having obtained it. The Labour Court ordered Fedasil to accommodate the concerned individual given that his application for international protection was re-openend by the Immigration Office and that he is thus is entitled to reception. There are no provisions in the Reception Act or in the recast Reception Directive which allow an indefinite exclusion from the material reception because an applicant left a designated reception location earlier. Fedasil’s decision was not individually motivated and did not take into account the specific needs of the applicant. Given that the applicant has been living on the street since their decision, Fedasil doesn’t guarantee the right to a dignified standard of living, as recently clarified by the European Court of Justice. The Labour Court ruled that the saturation of the reception network is not a reason to limit or withdraw the right to reception foreseen in article 4 of the Reception Act.
In a July 2015 judgment in the V.M. v Belgium case, the ECtHR found that Belgium had violated Article 3 ECHR because (back in 2011) it had not provided for adequate material reception conditions for a particularly vulnerable family (asylum seekers, children, disabled, Roma) during the (non-automatically suspensive) appeal procedure against an Immigration Office transfer decision under the Dublin Regulation.
Asylum seekers who are sent back to Belgium following a Dublin procedure are often considered as subsequent applicants (see Situation of Dublin Returnees). As a consequence they often only get shelter after their asylum application is taken into consideration by the CGRS. In the case where an asylum seeker has left Belgium before the first interview, he or she will have gotten a “technical refusal” in his or her first asylum procedure. When this asylum seeker is then sent back to Belgium following a Dublin procedure and lodges his or her asylum application again, the CGRS is legally obliged to take it into consideration. Nonetheless, these asylum seekers often are still considered as subsequent applicants and therefore are without shelter until this decision is officially taken.
Right to reception: Applicants with a protection status in another EU Member State
Since the introduction of Fedasils’ new instruction on 3 January 2020, beneficiaries of protection in another EU Member State are no longer provided accommodation in Belgium. To that end, the Immigration Office introduced a new questionnaire to be completed by each applicant for international protection on the day they make the application. In this questionnaire, the Immigration Office asks inter alia whether the applicant has already obtained international protection in another EU Member State. If the applicant declares that he has been granted protection, the dispatching service of Fedasil can refuse material reception and only grant medical assistance (known as a decision “code 207 no show”). Such a decision is taken only following an evaluation of the individual situation and needs of the applicant, notably by taking into account the reasons for applying for international protection in Belgium (e.g presence of family members).
In addition to the questionnaire, the Immigration Office checks through EURODAC whether applicants have already received protection in another EU Member State. If the applicant was wrongly assigned a reception location because he or she omitted to declare that he or she was granted protection in another Member State, Fedasil will ask him or her to report back to the arrival centre. According to Fedasil’s instruction it is the duty of social workers to inform the applicants of their obligation to report back to the arrival centre, where reception conditions will be withdrawn and limited to medical assistance. According to the instruction, these applicants must be informed about the possibilities for support if they want to return to the other EU Member State.
“Return track” and assignment to an open return centre
The law foresees a so-called “return track” for asylum seekers. This is a framework for individual counselling on return set up by Fedasil which promotes voluntary return to avoid forced returns.
The return track starts with informal counselling, followed by a more formal phase. The informal phase consists of providing information on possibilities of voluntary return and starts from the moment the asylum application is being registered. Within 5 working days after a negative first instance decision on the asylum application by the CGRS has been issued, the asylum seeker is formally offered return assistance. When an appeal is lodged in front of the CALL, the asylum seeker is informed again about his or her options for return. The return track ends with the transfer to an open return place in a federal reception centre, when:
(1) The period to introduce an appeal in front of the CALL has expired or a negative appeal decision is taken by the CALL: Asylum seekers may ask Fedasil for a derogation of this rule and thus to stay in their first reception centre in case of:
- Families with children who are going to school, who receive a negative decision of the CALL between the beginning of April and the end of June;
- Ex-minors who turn 18 between the beginning of April and the end of June and go to school
- A medical problem which prevents the asylum seeker from moving to the open reception place or during the last 2 months of pregnancy until 2 months after giving birth;
- a family reunification procedure with a Belgian child has been started up;
- when the asylum procedure of a family member is still pending.
When these derogations are granted, the asylum seeker can stay in the first reception centre until the conditions for the derogation are no longer met. At the end of the derogation the asylum seeker can ask for a new designation at an open reception centre, or simply leave the old centre.
In November 2019 Fedasil published instructions specifically addressed to persons who can not be accommodated in open return centres due to medical reasons which would render the accommodation inadequate. A specific track has thus been established form them by the “voluntary return” service of Fedasil. This service foresees the possibility to set up 3 appointments during which possibilities for voluntary return are discussed and which can take place in the reception centre of the asylum seeker, if necessary. The decision to further prolong the right to reception of the concerned persion will depend on his.her medical situation as well as on his/her cooperation.
(2) The Immigration Office takes a negative decision on the basis of the Dublin Regulation: In this situation, derogations from the obligation to go to the open return centre are only possible in case of:
- A medical problem which prevents the asylum seeker from moving to the open reception place or during the last 2 months of pregnancy until 2 months after giving birth; and
- The asylum seeker has applied for a prolongation of the order to leave the territory at the Immigration Office.
When this derogation is granted, the asylum seeker can stay in the first reception centre. His or her return should be organised there, instead of in the open return centre.
Unaccompanied minors who are subject to a negative decision are not transferred to an open return centre until they reach adulthood. Then they can apply for a place in an open return centre.
End of the right to reception
The right to material reception ends when:
- A legal stay for more than three months is granted; or
- An order to leave the territory is delivered and the delay on this order has expired, and there is no possibility left for introducing a suspensive appeal.
Appeals don’t have suspensive effect when they are appeals against:
– a decision of the Immigration Office (like a Dublin decision or an order to leave the territory),
– a negative decision on the asylum application or a decision to grant subsidiary protection of the CALL after a first suspensive appeal.
During these appeals there is no right to shelter, unless:
- the CALL suspends or annuls the decision of the Immigration Office or CGRS;
- the Council of State declares a cassation appeal against a decision of the CALL admissible.
Therefore, the right to reception in the open return centre ends when the order to leave the territory expires. In case of a negative Dublin decision this delay is mentioned on the “Annex 26-quarter” (see Right to reception: Dublin procedure). In case of a negative decision by the CGRS, the Immigration Office delivers an order to leave the territory only when the suspensive appeal has been rejected by the CALL, or after the deadline for introducing the appeal has expired. Unless a third (or further) asylum application was declared inadmissible by the CGRS and it deems that there is no risk of direct or indirect refoulement, the order to leave the territory is delivered immediately after the decision of the CGRS. The time limit of the order to leave the territory will vary between 0 and 30 days (see Procedures).
Until the expiry of the deadline of the order to leave the territory, every asylum seeker (whether he or she collaborates with voluntary return or not) is entitled to full material reception conditions. The order to leave the territory can be prolonged only if the person collaborates on his or her return. When the period for voluntary return as determined in the order to leave the country expires and there is no willingness to return voluntarily, the right to reception ends and the Immigration Office can start the procedure to forcibly return the person, including by using administrative detention. In practice, the police may come to the open return centre and arrest a person whose right to reception has ended and who is not willing to return voluntarily.
In case of a negative outcome of the asylum procedure and thus the end of the right to reception, there are some humanitarian reasons and other circumstances which may allow for prolongation of the right to reception conditions, namely:
- to end the school year (from the beginning of April until the end of June);
- during the last 2 months of pregnancy until 2 months after giving birth;
- when a family reunification procedure with a Belgian child has been started up;
- when it is impossible for the person to return to their country of origin for reasons beyond their own will;
- for medical reasons, when an application for legal stay has been made on this ground at the Immigration Office; or
- whenever respect for human dignity requires it.
Fedasil has adopted internal instructions about these possibilities and how to end the accommodation in the reception structures in practice.
In case of a positive outcome of the asylum procedure, and thus after a decision granting a protection status, or another legal stay (for example, a medical regularisation procedure – which has been started up parallel with an asylum procedure – with a positive outcome and thus a legal stay of more than 3 months), the person concerned can stay for a maximum of 2 more months in the reception place. These 2 months should allow the person to look for another place to live and to transit to financial help of the PCSW if necessary. Persons staying in collective structures at the moment of recognition (or other legal stay) will be offered the choice between moving to an individual reception structure for 2 months or leave the collective structure within 10 working days. In the last case they will receive food cheques during one month. The deadline of two months can be extended. In general a prolongation of one month is common, after that the request for further prolongation should be very well motivated. All prolongations are generally awarded for no longer than a month, except for exceptional cases e.g. finishing the school year from April onwards or having a signed lease which starts after a month. This is not specified in the Reception act but Fedasil has adopted internal instructions allowing such rules to be put in place.
Article 3 Reception Act.
Article 35/2 Reception Act.
Article 35/1 Reception Act.
 Article 50/1 Aliens Act.
 Article 6(1) Reception Act.
 Chamber of Representatives, Policy Note on asylum and migration, October 2017, 24.
 Articles 9-10 Reception Act.
CE, Decision No 243306, 20 December 2018
 Refugee Rights Europe, ‘Left in-between. Documenting the situation for refugees and displaced people in Brussels’, June 2018, https://bit.ly/2x0zZr0; Dokters van de Wereld, ‘Politiegeweld tegen vluchtelingen en migranten onderweg in België: een kwantitatief en kwalitatief onderzoek’, Oktober 2018, also available in French, https://bit.ly/2sKBiIL.
 ECRE, ‘MSF: The Insecure and Unsafe Situation of Migrants in Europe Increases their Psychological Pain and Suffering’, 1 March 2019, available at: https://bit.ly/2TsVwWC.
 Article 4(1)(3) Reception Act.
 Constitutional Court, Decision No 95/2014, 30 June 2014.
 Labour Court of Brussels, Decision No 17/1762/A, 8 February 2018. See also Labour Court of Brussels, Decision of 17 February 2015, available in French at: http://bit.ly/1Q3cOBn; Labour Court of Brussels, Decision No 16/1384/A, 14 November 2016; Labour Court of Bruges, Decision No 16/8K, 11 October 2016.
 Fedasil, Instructions on the termination and the prolongation of the material reception conditions, 15 October 2013, available in Dutch at: http://bit.ly/1Km961S. These internal instructions replaced the Instructions of 13 July 2012, before they were eventually quashed by the Council of State, Judgment No 225.673, 3 December 2013.
 CJEU, Case C-179/11, CIMADE, GISTI v. Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration, 27 September 2012.
 Fedasil, Instruction on the change of place of mandatory registration of asylum seekers having received a refusal decision following a Dublin take charge, 20 October 2015, available in Dutch at: http://bit.ly/1MuInwV. This instruction replaces point 2.2.4. of the Instructions of 15 October 2013.
 CJEU, C-233/18 Haqbin, 12 November 2019.
 Labour Court of Brussels, Decision No 2020/000899, 22 January 2020.
 Article 57/6/2 Aliens Act.
 Article 6/1 Reception Act.
 Fedasil, Instruction concerning the return track and the assignment to an open return place, 20 October 2015, available in Dutch at: http://bit.ly/1Nof30n, and Instruction concerning the modification of the reception place of asylum seekers who have received a negative decision on the basis of the Dublin Regulation, 20 October 2015.
 Article 6 Reception Act.
 Article 52/3 Aliens Act; Article 6 Reception Act.
 Article 74/14 Aliens Act.
 Article 6/1 Reception Act and Article 52/3 Aliens Act.
 Myria, Contact Meeting, September 2019, available in Dutch at: https://bit.ly/32Bz939.
 Article 7 Reception Act.
 Fedasil, Instructions on the termination and the prolongation of the material reception conditions, 15 October 2013.
 Fedasil, Instructions on the transition from material reception to financial help: measures for residents of collective centres and the accompaniment in transition in the individual structures, 20 July 2016.