Author
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.[1]
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 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. EU citizens applying for asylum can challenge the formal refusal decision of Fedasil (known as ‘non-designation of a code 207’) before the Labour Court.
In theory, no material reception conditions, with the exception of medical care, are due to a person with sufficient financial resources.[2] Expenses that have been provided in the context of reception can also be recovered in such cases.[3] 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[4]. 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.[5] 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,[6] in line with the recast Reception Conditions Directive.
In December 2018 an ‘arrival centre’ was established at the open reception centre ‘Klein Kasteeltje”/”Petit Château’ located in the city centre of Brussels, where all asylum applications have to be made and registered and where applicants access the reception system. This means that both the Immigration Office and Fedasil are present in the arrival centre: the Immigration Office to register the asylum applications, Fedasil to screen the newly arrived asylum seekers, to provide them with information on their right to reception conditions and to provide access to the reception system for those asylum seekers who want to. The arrival centre is also the place where asylum seekers who were already in the reception system but need to be reassigned to another centre – for example because they were excluded from the reception system temporarily because of a sanction – need to present themselves and where a new reception centre is designated.
All persons applying for asylum in the arrival centre need to pass the screening service of Fedasil. Here, they indicate whether they want to access the reception system or they intend to stay on a private address. Fedasil conducts a first social screening. For people with special needs (for example medical problems) a thorough social intake is conducted. All people who apply for international protection for the first time then pass the medical service, where they get vaccinated (optional) and undergo a tuberculosis test (compulsory).
Asylum seekers who want to access the reception system are first accommodated in the arrival centre for at least 3 days. Fedasil assesses any specific reception needs that might arise (e.g. medical needs) and designates a reception centre for the rest of the procedure.[7] The document of designation by Fedasil is called a “Code 207”. 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. There are currently 878 places in the arrival centre (around 600 regular places and around 200 buffer capacity).[8]
Asylum seekers who choose to stay at a private address will only be entitled to medical care. Their right to have the assistance of a pro bono lawyer may be affected as well in case they live with someone who has sufficient means and can afford a lawyer. These applicants can nonetheless always opt for material aid again, as long as their asylum procedure is pending.
The arrival centre 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.[9] 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 26quater or a protection status in another Member State’ of 3 January 2020 (applicable from 7 January 2020 onwards), Fedasil limited the material reception to medical assistance for two categories of applicants:[10]
- 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 Right to reception: Applicants with a protection status in another EU Member State).
This new policy was adopted following important issues of overcrowding of the reception network as well as an increase of applications for international protection made by these groups. According to Fedasil, a large proportion of applicants with an annex 26quater 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. Both categories were considered to be abusing the asylum procedure.
On the basis of these instructions, both categories of applicants could receive a ‘code 207 no show’ by Fedasil after an evaluation by the dispatching desk of Fedasil was 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). Fedasil’s decision to limit material assistance has thus a significant impact on the applicants.
Although according to the instructions, the decision should be based on a circumstantial assessment of the situation of applicants, with particular attention to their individual background and needs, their network in Belgium and their availability for the asylum instances, practice has shown that after the instructions became applicable, the refusal to grant reception conditions to both categories of asylum seekers was categorical and of general nature. Most of these decisions did not take into account individual circumstances such as vulnerabilities nor whether a dignified standard of living would be ensured, in clear violation of article 4 of the Reception Act (see Reduction or withdrawal of reception conditions). Moreover, some of these decisions did not provide for a legal basis.
Many thus excluded asylum seekers appealed against these ‘code 207 no show’ before the presidents of the Labour Courts (urgent procedure). Some of these appeals led to the judges ordering Fedasil to grant reception to these asylum seekers (see Right to reception: Dublin procedure). After strict confinement orders were issued by the Belgian government due to the outbreak of COVID-19, all Labour Court presidents of both language roles ordered Fedasil, in cases brought before them by so-called ‘unilateral request’ (non-contradictory procedure in extreme urgency), to grant the applicants reception on a temporary base, for reasons of national health and security. However, in the meantime, Fedasil continued issuing ‘code 207 no show’ decisions. Consequently, applicants without a lawyer or whose lawyer refused to introduce a unilateral request on their behalf were left destitute during the pandemic.
In the meantime, several national, Flemish and French speaking NGOs (Vluchtelingenwerk Vlaanderen, CIRÉ, Médecins sans Frontières, NANSEN, ADDE, Liga voor Mensenrechten and Ligue des Droits Humains and the Order of French and German speaking bar associations (OBFG)) had introduced an appeal with the Council of State aiming for the suspension and the annulment of the Fedasil instructions. In September 2020, right before the hearing before the Council of State was scheduled, Fedasil withdrew the instructions of 3 January 2020.[11] Both categories of asylum seekers have thus since regained their full right to material assistance, including reception, during their asylum procedure.
In the context of the Covid-19 pandemic, a significant number of applicants for international protection had no access to the reception system between March and October 2020. This was mostly due to the introduction of the online registration system for applications for international protection introduced by the Immigration Office (see Registration of the asylum application). Since applicants for international protection are only entitled to material aid from the moment they make their application for international protection and during that period, some applicants for international protection had to wait multiple weeks before they were able to make their application, they had no access to the reception system during this waiting period.[12] In addition, since the dispatching service of Fedasil in the arrival centre was closed from 17 March 2020 onwards, applicants who needed to re-integrate the reception system (e.g. because they had left their reception place or after having received a decision that their subsequent application for international protection was declared admissible) had no access to the reception system either.[13]
In August 2020, a number of NGO’s declared the Belgian state in default at the Brussels court of first instance thereby requesting for a suspension of the online registration system. On 5 October 2020, the court condemned the Belgian state, stating that the completion of the online registration was equal to ‘the formal lodging of a request for international protection’ and should therefore give the immediate right to reception conditions. The Belgian state was given 30 days to change the registration system in a way that ensured the immediate access of applicants to the reception system. As a result, the Immigration Office suspended the online registration system and resumed the previous system of physical, spontaneous registrations on 3 November 2020. Applicants have since then regained immediate access to reception conditions. As for the re-integration in the reception system, Fedasil confirmed in October 2020 that it was possible for people having previously received a ‘code 207 No Show’ to make an appointment with the Dispatching service in order to receive a place in the reception system.[14]
Since 2017, many migrants, mostly originating from Sudan, Ethiopia and Eritrea, are sleeping in the North district of Brussels in the public space such as 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. Many 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. According to NGOs, they refuse to apply for asylum because of feelings of mistrust towards a government that has abandoned them. At the end of September 2017, several NGOs including Ciré, Artsen zonder Grenzen, Plateforme des citoyens and Médecins du Monde set up a humanitarian hub for these migrants, where they receive medical and psychological help, legal advice, clothes, and family tracing assistance. This hub, formerly located near the Northern train station in Brussels, is currently located in the Brussels port and continues to provide aid.[15] During winter months, the Red Cross has opened a day centre next to the humanitarian hub where these migrants can stay during the day, take a shower and have a meal at noon and in the evenings.[16]
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.[17] 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.[18]
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.[19] This is unless Fedasil is informed that they have a pending or granted request for a prolongation of the reception.[20] Between the moment of the subsequent application and the admissibility decision by the CGRS, asylum seekers who were refused reception nevertheless 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.
If 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.[21]
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.[22] 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.[23] 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.[24] The Federal Mediator continues to receive complaints, including from families with minor children, having been refused reception after lodging a subsequent application for international protection. In several cases, Fedasil has reviewed its decision after intervention by the Federal Mediator and has granted the applicants reception.[25]
Right to reception: Dublin procedure
During the examination of the Dublin procedure by the Immigration Office, asylum seekers are entitled to a reception place. If an annex 26quater (negative Dublin transfer decision with order to leave the territory) is issued, the right to material assistance is terminated as soon as the delay to leave the territory, mentioned on the annex, has expired or as soon as the travel documents are delivered (in case the asylum seeker confirms his/her willingness to collaborate with the transfer but cannot obtain the necessary travel documents within the delay to leave the territory for reasons beyond his or her own will).[26] Fedasil considers this practice in line with the Cimade and Gisti judgement of the CJEU.[27] 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.[28] 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.[29]
Currently, asylum applicants subject to a Dublin transfer decision (annex 26quater) are accommodated in an open return place and the return track procedure will apply, as described below (see “Return track” and assignment to an open return centre).[30]
After the maximum time period allowed by the Dublin Regulation to transfer the asylum seeker to the responsible Member State has passed (6 months in principle, possibly extended to maximum 18 months), Belgium becomes 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).
As described above (see Right to shelter and assignment to a centre), following the introduction of new instructions on 3 January 2020, Fedasil refused to accommodate many persons who fall under the responsibility of the Belgian state by default due to the failure to carry out the Dublin transfer in time.
Many thus excluded asylum seekers appealed against these “code 207 no show” before the presidents of the Labour Tribunals (urgent procedure). At first instance, the outcome of these appeal procedures depended on the individual circumstances of the case – for example, any alternative shelter the applicant had to his or her disposal, particular vulnerabilities… – but also on the assessment of the respective judges and their view on the nature and the precise extent of the right to reception conditions.
For example, in a decision of 22 January 2020, the French-speaking Labour tribunal of Brussels condemned Fedasil for applying these new instructions to an applicant subject to a Dublin transfer decision. He had left the shelter after receiving the annex 26quater and had 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. Fedasil’s decision referred 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 tribunal ordered Fedasil to accommodate the concerned individual given that his application for international protection was re-opened 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 had been living on the street since this decision, Fedasil did not guarantee the right to a dignified standard of living, as recently clarified by the European Court of Justice.[31] The Labour tribunal 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.[32]
However, in a judgment of 24 February 2020, the Dutch-speaking Labour tribunal of Brussels rejected a similar appeal against a decision of Fedasil taken on the basis of these new instructions towards an applicant having reported back to the Immigration Office after the expiry of the 6-month Dublin transfer period. The judge reproached the applicant to have left the reception network after having received an annex 26quater, instead of going to the open return place that was offered to him by Fedasil, in order to avoid the application of the Dublin III Regulation. The judge refused to treat the case as an urgent matter, the applicant having created the urgency himself by leaving the reception network.[33]
After strict confinement orders were issued by the Belgian government in the middle of March due to the outbreak of COVID-19, all Labour tribunal presidents of both language roles ordered Fedasil, in cases brought before them by so-called ‘unilateral request’ (non-contradictory procedure in extreme urgency), to grant the applicants reception on a temporary base, for reasons of national health and security. However, in the meantime, Fedasil continued issuing ‘code 207 no show’ decisions. Consequently, applicants without a lawyer or whose lawyer refused to introduce a unilateral request on their behalf were left destitute during the pandemic.
In the meantime, by the end of January 2020, several national, Flemish and French speaking NGOs (Vluchtelingenwerk Vlaanderen, CIRÉ, Médecins sans Frontières, NANSEN, ADDE, Liga voor Mensenrechten and Ligue des Droits Humains and the Order of French and German speaking bar associations (OBFG)) had introduced an appeal with the Council of State aiming for the suspension and the annulment of the Fedasil instructions. In September 2020, right before the hearing before the Council of State was scheduled, Fedasil withdrew the instructions of 3 January 2020. Both categories of asylum seekers have thus since regained their full right to material assistance, including reception, during their asylum procedure.[34]
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.[35] 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
On the basis of Fedasil’s new instruction (see Right to shelter and assignment to a centre), beneficiaries of protection in another EU Member State were no longer provided accommodation in Belgium from 7 January 2020 onwards. 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. In addition to the questionnaire, the Immigration Office checks through EURODAC whether applicants have already received protection in another EU Member State. If, based on the applicant’s declarations or on the EURODAC results, it appeared that the applicant had been granted international protection elsewhere, Fedasil could refuse material reception and only grant medical assistance (known as a decision ‘code 207 no show’). Such a decision was 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).
As was the case for applicants excluded from the reception system after the expiry of the Dublin transfer period (see Right to reception: Dublin procedure), appeals against these exclusion decisions were brought before the presidents of the Labour tribunals (urgent procedure) in individual cases. After strict confinement orders were issued by the Belgian government in the middle of March due to the outbreak of COVID-19, the Labour tribunals – stating on unilateral request – ordered Fedasil to accommodate these persons, stating that as applicants for international protection, they should be provided with reception by Fedasil and the reasons of national health and security making the matter extremely urgent.[36]
After the withdrawal of the instructions of 3 January 2020 in September 2020, applicants with a protection status in another EU member state regained their full right to material assistance, including reception, during their asylum procedure.
“Return track” and assignment to an open return centre
The law foresees a so-called “return track” for asylum seekers.[37] This is a framework for individual counselling on return set up by Fedasil which promotes voluntary return to avoid forced returns.[38]
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.
If 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 cannot be accommodated in open return centres due to medical reasons which would render the accommodation inadequate.[39] A specific track has thus been established for 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 person will depend on his or her medical situation as well as on his or 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.
Regularly, decisions of transfer to an open return place are challenged before the Labour courts by applicants having received an annex 26quater, especially when an appeal against this annex has been brought before the CALL. According to Belgian law, this latter appeal possibility does not have an automatic suspensive effect (see Appeal). As a consequence, notwithstanding the introduction of this appeal, a return procedure is initiated at the open return place. Lawyers have argued that this return procedure violates the right of the applicants to an effective appeal. In 2020, Belgian judges have referred to the Court of Justice of the EU (CJEU) for a preliminary ruling in several cases in order to clarify this question of an effective appeal in the context of a Dublin transfer decision.[40] Until now, the CJEU has closed these cases without responding to the preliminary questions by lack of interest of the persons concerned, since Belgium had in the meantime become responsible for the treatment of their asylum request. On 3 February 2021, the president of the Labour tribunal of Liège (division of Namur) judged that the appeal procedure in Belgian law provides against a decision of refusal of residence with order to leave the territory in execution of the Dublin III Regulation (annex 26quater) cannot be considered an effective appeal as required by European and international legislation, and should have automatic suspensive effect in cases where a violation of article 3 ECHR or article 4 EU-Charter is invoked. The judge decided that the transfer decision to an open return place taken by Fedasil was thus invalid and the applicants had to be further accommodated in their original reception centre, the latter providing stronger guarantees as to their right to reception.[41]
End of the right to reception
The right to material reception ends when:[42]
- 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 non-suspensive 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 26quater” (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. If 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.[43] The time limit of the order to leave the territory will vary between 0 and 30 days (see Procedures).[44]
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 with his or her return.[45] 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.[46]
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.[47]
Fedasil has adopted internal instructions about these possibilities and how to end the accommodation in the reception structures in practice.[48]
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.[49] 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.[50] In general a prolongation of one month is common; in exceptional cases – e.g. finishing the school year from April onwards or having a signed lease which starts after a month – prolongation can be granted for more than a month. A first, and exceptionally second prolongation can be granted on the basis of the steps taken by the persons to secure their own housing. A third prolongation request can exceptionally be granted for reasons linked to human dignity.[51] This is not specified in the Reception act but Fedasil has adopted internal instructions allowing such rules to be put in place.[52]
[1] Article 3 Reception Act.
[2] Article 35/2 Reception Act.
[3] Article 35/1 Reception Act.
[4] In 2020, the right to reception was withdrawn because of the employment of the person concerned in 31 cases. Source: Fedasil.
[5] Article 50/1 Aliens Act.
[6] Article 6(1) Reception Act.
[7] Chamber of Representatives, Policy Note on asylum and migration, October 2017, 24.
[8] Fedasil, Opvangnetwerk voor asielzoekers in België, available in Dutch at: https://bit.ly/2O7iAtn and Myria, Contact meeting, 20 January 2021, available in French at: https://bit.ly/3sE592s, 27.
[9] CE, Decision No 243 306, 20 December 2018
[10] Vluchtelingenwerk Vlaanderen, Legal note: Federal government refuses to grant reception to certain groups of asylum seekers, available in Dutch at: https://bit.ly/2w8fsUw.
[11] Myria, Contact meeting, 16 September 2020, available in French at: https://bit.ly/3sE592s, § 720.
[12] Vrt Nws, Asylum seekers wait on the streets for weeks before being able to register: “Barely 1 in 3 gets the chance”, 8 May 2020, available in Dutch at: http://bit.ly/3t38o3D; Vluchtelingenwerk Vlaanderen, 700 men, women and children on the streets: online coronaproof asylum procedure is failing, 9 July 2020, available in Dutch at: http://bit.ly/30slxak.
[13] Myria, Contact meeting, 6 May 2020, available in French at: https://bit.ly/3sE592s, 27.
[14] Myria, Contact meeting, 21 October 2020, available in French at: https://bit.ly/3sE592s, 21.
[15] Bruzz, Humanitarian hub for migrants opens in Port Avenue, available in Dutch at: http://bit.ly/3t4ZO4E .
[16] Red Cross, New day centre, 15 December 2020, http://bit.ly/3v3ruZr .
[17] 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.
[18] Vluchtelingenwerk Vlaanderen and others, Migrants in transit in Belgium, February 2019, available in French at: https://bit.ly/2I1ivR3.
[19] Article 4(1)(3) Reception Act.
[20] Fedasil, Instructions on the right to material aid in case of subsequent asylum applications, 6 March 2015, available in Dutch at: http://bit.ly/1RrW7gl.
[21] Constitutional Court, Decision No 95/2014, 30 June 2014.
[22] 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.
[23] Federal Mediator, Annual Report 2016, available at: https://bit.ly/2udKLvX; Annual report 2015, available at: http://bit.ly/2jAm6f7.
[24] Orbit, ‘Fedasil zet asielzoekersgezin eerst op straat en herziet na 14 dagen foute beslissing’, 20 November 2017, available in Dutch at: http://bit.ly/2G2nP3L.
[25] Federal Mediator, Annual Report 2019, available at: https://bit.ly/3u2VaFi.
[26] 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.
[27] 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.
[28] Labour Court, Brussels, Judgment of 4 December 2013; Labour Court of Antwerp, Judgment of 6 March 2014, available in Dutch at: http://bit.ly/1FGadUL.
[29] ECtHR, V.M. and others v. Belgium, Application No 60125/11, Judgment of 7 July 2015 (referred to the Grand Chamber but eventually struck out of the list), available at: http://bit.ly/1MYGPvr.
[30] 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.
[31] CJEU, C-233/18 Haqbin, 12 November 2019.
[32] Labour tribunal of Brussels, Decision N° 2020/000899, 22 January 2020.
[33] Labour tribunal of Brussels, Decision N°20/7/C, 24 February 2020.
[34] Council of State, Decision No 249163, 7 December 2020.
[35] Article 57/6/2 Aliens Act.
[36] For example: Labour tribunal of Brussels, 30 March 2020, N° 20/105/K.
[37] Article 6/1 Reception Act.
[38] 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.
[39] Fedasil, Instructions on Return assistance – medical exceptions for open return places, November 2019, available in French at: http://bit.ly/3baE7qJ.
[40] Labour Court Liège, 10 February 2020, N° 2020/CL/3; Labour Tribunal Brabant-Wallon (div. Wavre), 24 July 2020 and CJUE, 22 January 2021, N° C-335/20, available at http://bit.ly/2PRitCD .
[41] Labour Tribunal Liège (div. Namur), 3 February 2021, N° 21/1/C available in French at: https://bit.ly/2PHUS7a and discussion available in Dutch at: http://bit.ly/3qAfivN .
[42] Article 6 Reception Act.
[43] Article 52/3 Aliens Act; Article 6 Reception Act.
[44] Article 74/14 Aliens Act.
[45] Article 6/1 Reception Act and Article 52/3 Aliens Act.
[46] Myria, Contact Meeting, September 2019, available in Dutch at: https://bit.ly/32Bz939.
[47] Article 7 Reception Act.
[48] Fedasil, Instructions on the termination and the prolongation of the material reception conditions, 15 October 2013.
[49] 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.
[50] Ibid.
[51] Source: Fedasil.
[52] Ibid.