Reduction or withdrawal of reception conditions

Belgium

Country Report: Reduction or withdrawal of reception conditions Last updated: 30/11/20

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The law provides for some situations in which reception conditions and material aid can be refused or withdrawn or even recovered from the asylum seeker. Such decisions are only possible for individual reasons related to the asylum seeker.

 

Sanctions for violation of house rules

 

Different limitations to the enjoyment of reception conditions can be imposed for infractions of the house rules of a reception centre. Two long awaited decrees on this theme were published in 2018:

  • A royal decree on the system and operating rules in reception centres and the modalities for checking the rooms[1]
  • A ministerial decree on common house rules in reception centres[2]

The Royal decree stipulates the general rules while the ministerial decree implements them and contains a list of house rules. One part of them is obligatory for all reception facilities, the other part varies depending on the specific reception structure. These rules apply in all reception facilities, except the observation and orientation centres for minors.

The common obligatory house rules include:

  • Respect the infrastructure
  • No drugs, alcohol and no smoking
  • One should signal his or her absence from the centre for the night. If one is absent from the assigned place for 3 consecutive days without prior notice or for more than 10 nights in one month (with or without prior notice), he or she may be unsubscribed from the centre (in that case one can ask for another centre at the dispatching service of Fedasil)

The possible sanctions are enumerated in Article 45 of the Reception Act:

  1. the formal warning with an entry in the social dossier;
  2. the temporary exclusion from the activities organised by the reception structure;
  3. the temporary exclusion from the possibility of doing paid community services;
  4. the restriction of access to certain services;
  5. the obligation to perform tasks of general benefit (in case of non-performance or defective performance this may be considered as a new offence);
  6. the temporary suspension or reduction of the daily allowance, with a maximum period of four weeks;
  7. the transfer, without delay, of the asylum seeker to another reception structure;
  8. the temporary exclusion of the right to material assistance, for a maximum duration of one month;
  9. the definitive exclusion of the right to material assistance in a reception structure

The procedures on how to apply these sanctions can be found in a Royal Decree.[3]

As a sanction for having seriously violated the house rules, and thereby putting others in a dangerous situation or threatening the security in the reception facility, the right to reception can be suspended for a maximum of one month.[4] This measure was taken against 133 persons in 2019, for a period varying between 3 and 30 days.[5]

The law makes it possible to withdraw reception permanently.[6] The sanction can only be used for persons, who had been temporarily excluded from reception before, subject to the aforementioned sanction, or in serious cases of physical or sexual violence. One applicant was permanently excluded from reception in 2019.[7]

Sanctions are taken by the managing director of the centre and have to be motivated. The person who received the sanction has to be heard prior to the decision. Most sanctions can be appealed before the managing authority of that reception centre (the Director-General of Fedasil, the NGO partner or the administrative council of the PCSW). An onward non-suspensive appeal is possible in front of the Labour Court.[8] As with every other administrative or judicial procedure, the asylum seeker is entitled to legal assistance, which will be free of charge if he or she has no sufficient financial means. In all of these cases, the reception conditions will be reinstated as soon as the sanction – mostly of temporary in nature – has elapsed.

The sanctions that exclude the asylum seeker from the reception facilities (one month or permanently) have to be confirmed within 3 days by the Director-General of Fedasil. If they are not confirmed, the sanction is lifted. During the time of exclusion the asylum seeker still has the right to medical assistance from Fedasil. The applicant has the legal right to ask Fedasil for a reconsideration of this sanction, in case he or she can demonstrate that there is no other possibility to ensure living conditions in accordance with human dignity. Fedasil should answer this request within 5 days, after which an onward appeal is again possible in front of the Labour Court.[9] In 2019 only one request for reconsideration of the exclusion from the reception facilities was made, but it was refused by Fedasil.[10]                                             

Before its adoption, the permanent exclusion sanction was met with criticism by UNHCR who highlighted that Article 20(1)-(4) of the recast Reception Conditions Directive only allows a limited amount of situations in which reception facilities can be withdrawn or reduced, and that exclusion as a sanction is not one of them. UNHCR recommended that attention should be given to Article 20(5) of the Directive which guarantees an individual, impartial and objective decision which takes into account the particular situation of the person (e.g. the vulnerability) and the principle of proportionality. Health care and a dignified standard of living should at all times be ensured. Further recommendations were to make sure the law mentions the possibilities on how to ensure dignified living conditions explicitly and to describe clearly in which situations this sanction applies.[11]   

The Council of State advised as well that there should be an explicit guarantee in the law on how to ensure dignified living conditions for those excluded from the reception facilities.[12]

The possibilities on how to ensure dignified living conditions were in the end not clearly mentioned in the law, although during the preparatory works of the law Fedasil made clear that it has a cooperation with an organisation that works for homeless people to which it could refer some of those excluded from shelter. In practice when they communicate the decision to the asylum seeker they inform him/her about the refund of medical costs and about shelter possibilities for homeless people, but “guarantees for dignified living conditions” are not used as a criteria during the decision-making.

In March 2018 the Brussels Labour Court has referred questions to the CJEU for a preliminary question regarding the circumstances under which material reception conditions under the Reception Conditions Directive may be reduced or withdrawn and the need to examine the consequences of such decisions, particularly with regard to unaccompanied children.[13] The case concerned an unaccompanied minor who was refused the right to an accommodation during 15 days. He therefore had to live on the street and at a relative’s place. After 15 days, he was finally accommodated by Fedasil again. In its decision Haqbin of 12 November 2019, the CJEU ruled that, where house rules of an accommodation are breached or where a violent behaviour occurs, the sanction cannot be the withdrawal of material reception conditions relating to housing, food or clothing, even if it is temporary. Such sanctions must be taken with even more precaution when they involve vulnerable applicants such as unaccompanied minors. According to the CJEU, even the most severe sanction should not deprive the applicant of the possibility of meeting his most basic needs. Member States should ensure such a standard of living on an ongoing basis and without interruption. They should grant access to material reception conditions in an organised manner and under their own responsibility, including when they call upon the private sector to fulfil that obligation. It is therefore not sufficient for them to provide a list of private homeless centres which could be contacted by the applicant, as Fedasil did in the present case. The competent authorities must always ensure that a sanction complies with the principle of proportionality and does not affect the dignity of the applicant.[14]

At the time of writing, Fedasil had no information yet on how the Belgian law and practice will be adapted to this jurisprudence.[15]

 

Other grounds

 

Under the Article 4(1) of the Reception Act, Fedasil may refuse or withdraw the assignment of a reception place if:

  1. Such a place has been abandoned by the asylum seeker. This applies in cases where the asylum seeker is absent for 3 consecutive days without prior notice or for more than 10 nights in one month (with or without prior notice). The asylum seeker has the right to ask for a new place but can be sanctioned. Since January 2020 Fedasil applies a new instruction based on this provision (see Right to reception: Dublin procedure).

 

  1. The asylum seeker does not attend interviews or is unwilling to cooperate when asked for additional information in the asylum procedure. This ground was inserted with the 2017 reform. Worryingly, Fedasil is not required to await an official decision of the Immigration Office, CGRS or CALL on the asylum procedure in order to take such a decision. In early 2020 Fedasil published instructions applying this possibility.[16] If an asylum seeker doesn’t lodge the application for international protection after he/she made it (on the appointment date the Immigration Office gave on “the certificate of declaration”) and he/she didn’t present himself to the new appointment date obtained with the help of the social worker in the centre, the centre will end the material reception. The asylum seeker will only have the right to ask for the reimbursement of medical costs, until he/she regularises his/her situation and lodges an application at the Immigration Office. Once the annexe 26 has been obtained, the applicant can request material reception again at the “Infopunt” of Fedasil.

 

  1. The applicant makes a Subsequent Application.

 

On the basis of Article 4(3) and 4 of the Reception Act, the decisions of revocation or limitation of reception conditions should always:

  • be individually motivated;
  • be taken with due regard to the specific situation of the person concerned, in particular where vulnerable persons are concerned, and to the principle of reasonableness;
  • to ensure access to medical care and a dignified standard of living.

According to the Reception Act, it is possible to refuse, withdraw or reduce reception rights – with the exception of the right to medical assistance and the medical assistance already received – or even claim compensation if the asylum seeker has sufficient financial resources. Such a sanction can also be imposed for not having omitted to declare resources at the time of making the application.[17] Until now, only the withdrawal of the reception place assigned to the asylum seeker has been decided in case of a proven sufficient and sufficiently stable income in practice.

If an asylum seeker resides in a reception facility (LRI or collective centre) and is employed, he or she has an obligation to contribute with a percentage of his or her income to the reception facility (from 35% on an 80€ monthly income to 75% on a monthly income of more than 500€) and is excluded from any material reception conditions if his or her income is higher than the social welfare benefit amounts mentioned above and the working contract is sufficiently stable.[18] The applicant also has an obligation to inform the authorities thereof. Although a control mechanism is provided for in the abovementioned Royal Decree, Fedasil did not dispose of the necessary means or control mechanisms at the time of writing. Most of the local PCSWs’ have the resources to carry out such controls, however. In 2019, 19 persons had their reception rights suspended on the basis that they have obtained sufficient means through their employment, while Fedasil received contributions that amount to a total of 288,509.49€.[19]

No reduction of material reception conditions is legally foreseen in case the asylum seeker has not introduced his asylum application within a “reasonably practicable” period after arrival. This is only a relevant criterion for the CGRS when determining the well-foundedness of the application itself.

 


[1] Royal Decree on the system and operating rules in reception centers and the modalities for checking rooms, 2 September 2018

[2] Ministerial Decree on house rules in reception centers, 21 September 2018

[3] Royal Decree of 15 May 2014 on the procedures for disciplinary action, sanctions and complaints of residents in reception centres.

[4]  Article 45(8) Reception Act.

[5] Information provided by Fedasil, February 2020.

[6] Article 45(9) Reception Act.

[7] Information provided by Fedasil, February 2020.

[8] Article 47 Reception Act.

[9] Article 45 Reception Act.

[10] Information provided by Fedasil, February 2020.

[11] UNHCR, Commentaires du Haut Commissariat des Nations Unies pour les réfugiés relatifs à l’avant projet de loi modifiant la loi du 12 janvier 2007 sur l’accueil des demandeurs d’asile et de certaines autres catégories d’étrangers (ci-après « avant-projet de loi »), introduisant des sanctions supplémentaires en cas de manquement grave au régime et règles de fonctionnement applicables aux structures d’accueil, 22 April 2016, available at: http://bit.ly/2kVJLHh.

[12] Council of State, Opinion 59/196/4, 27 April 2016, available at: http://bit.ly/2kVBgvT.

[13] Labour Court Brussel No 2017/AB/277, 22 March 2018, available at: https://bit.ly/2Thk6dM.

[14] CJEU, Case C-233/18 Haqbin, Judgment of 12 November 2019.

[15] Information provided by Fedasil, January 2020

[16] Instructions of Fedasil on the limitations on the right to reception in case of non-lodging an application for international protection, of 20 January 2020.

[17] Articles 35/1 and 35/2 Reception Act.

[18] Articles 35/1 Reception Act and Royal Decree, 12 January 2011, on Material Assistance to Asylum Seekers residing in reception facilities and who are employed (original amounts without indexation).

[19] Information provided by Fedasil, January 2020.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation