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This blog was written by the Vluchtelingenwerk Vlaanderen (Flemish Refugee Action). It is a summary of its policy report entitled “Ceci n’est pas un demandeur d’asile: één jaar na de crisis, tijd voor een humaan asielbeleid”, published in October 2016. The complete report is available here (in Dutch only). 

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The last two years were particularly notorious for the European asylum policy: for the first time, the EU has felt the predictable consequences of an increasing number of conflicts and persecution in the rest of the world. In 2015, there were more than 1.2 million asylum seekers in the European Union, nearly twice as much as in 2014, with the vast majority coming from Syria, Afghanistan and Iraq.

These people, in need of international protection, also found their way to Belgium. In 2015, the Belgian Immigration Office recorded 35.476 asylum applications, double the amount of 2014. The highest monthly peak was reached in September 2015 with more than 5.512 registered applications. Thereafter, the number of applications began to decline slightly.

Although the number of refugees worldwide did not decline in 2016, Belgium experienced a decrease in the number of asylum applications. This decrease is inter alia due to the number of Member States closing their borders (in particular along the Balkan routes) and also to the conclusion of the EU-Turkey deal. The crisis is thus not an asylum crisis, but rather a crisis of the EU’s asylum policy as it focused on keeping people out of the EU, rather than on providing adequate protection to those people who need it. This policy shift reflects the tendency of many Member States to discourage asylum seekers from applying for asylum on their territory.

This was not different in Belgium: the Belgian authorities introduced a system of pre-registration, enacted restrictive legislation and invested in dissuasion campaigns. The Flemish Refugee Action followed these policy changes closely and held them against international human rights standards and EU legislation. In this blog post, you can find four highlighted topics of our report that will be analysed in light of EU law.

1. The right to access the asylum procedure

The right to asylum is enshrined in article 18 of the Charter for Fundamental Rights of the EU. This right is not only applicable to refugees as defined in the 1951 Refugee Convention, but also to persons fleeing generalised violence, who could fall under subsidiary protection. Although there is no consensus on the meaning of the right to asylum, it is undisputable that it entails the procedural right to apply for asylum. The Belgian government put this right at risk with the goal of managing the so-called ‘refugee crisis’.

By the end of summer 2015, the Belgian Immigration Office no longer registered all asylum seekers on the same day that they presented themselves to the Immigration Office. Instead, it set a quota of 250 registrations a day. The administration justified this decision by stating that the waiting room was too small, but in reality it offered the Belgian administration the opportunity to artificially avoid a reception crisis. Instead of being immediately registered, asylum seekers received a letter indicating on which day they had to come back for registration. This phase was called pre-registration and is not foreseen in the Belgian legislative framework.

As the Belgian administration did not consider these persons as asylum seekers, they could not exercise their rights as asylum seekers. Consequently, they did not have access to reception facilities, nor to legal aid or social assistance. As many of them were forced to stay in the streets, civil society and volunteers provided basic services. The government reacted in September by opening pre-reception facilities. These basic shelters are not in conformity with the conditions set out in the Reception Conditions Directive.

Although this system is no longer necessary as the Belgian administration is now perfectly capable of registering all asylum seekers on the same day they present themselves to the Immigration Office, the Belgian authorities maintained the pre-registration phase. Asylum seekers still receive a letter with a number which they can use online to verify the day on which they can register their application. This letter literally states: “You have not yet lodged your asylum application in Belgium”. Although the Immigration Office commits itself to register the asylum claim as soon as possible, it also admitted that it could take up to two weeks, meanwhile leaving asylum seekers in a vulnerable situation.

When we look at EU legislation on this point, we see that Article 6 of the Asylum Procedure Directive prescribes that the registration shall take place no later than three working days after the application is made. Further in that same article, it is emphasized that applicants should have the effective opportunity to lodge their application as soon as possible. In exceptional circumstances, for example when there is a large number of applications, Member States may extend the time limit for registration to ten working days. These provisions were not transposed into Belgian law. The Belgian legislative framework does not provide any possibility to delay registration in case of a large influx.

Article 6 of the Reception Conditions Directive requires that Member States shall ensure that, within three days of the lodging of an application, the asylum seeker is provided with a document issued in his/her own name certifying his/her status as applicant or testifying that he/she is allowed to stay on the territory of the Member State while his/her application is pending or being examined. Article 17 of the same Directive requires Member States to ensure that material reception conditions are available to applicants when they make their application. Consequently, asylum seekers are entitled to reception as defined in the Reception Directive from the moment they have presented themselves at the Immigration Office, rather than from the moment the Immigration Office chooses to register their application.

As long as asylum seekers are not considered as such, and as long as they are not able to exercise their rights from the moment they present themselves for the first time at the Immigration Office, the Belgian practice stands in violation of the Reception Conditions Directive read in conjunction with the Asylum Procedure Directive.

2. The right to adequate reception in conformity with the right of human dignity

In 2014, the Belgian administration started closing down a number of reception centers in Belgium. Due to these closures, the Belgian government was not fully equipped to provide adequate housing for the new influx of people in need of international protection. As mentioned above, the government tried to address this shortage by artificially delaying the registration of asylum seekers. At the same time, the government opened a number of emergency reception facilities.

This possibility is provided for by the Belgian law on reception, and it is a transposition of article 18(9) of the Reception Conditions Directive. It allows Member States to exceptionally set modalities for material reception conditions different from those provided for in the Directive, for a reasonable period which shall be as short as possible. This is possible when the available housing capacities are temporarily exhausted, and requires an assessment of the specific needs of the applicant. In Belgium, this period is legally limited to 10 days. However, in reality, we have noticed that asylum seekers have spent months in the emergency reception facilities, where social assistance, privacy and living conditions are limited.

Therefore, the Flemish Refugee Action advocates in its report for the respect of the time limit of 10 days in emergency reception facilities and to foresee a smooth transition to regular reception facilities that takes into account the specific needs of asylum seekers. This requires a flexible reception system that has a sufficient amount of places that offer adequate reception conditions.

3. The right to objective information

A fair asylum procedure is one where asylum seekers know their rights and duties, and where they understand the different stages of the procedure. The right to be informed at decisive moments is an important element of procedural fairness. The Asylum Procedure Directive establishes a duty to inform asylum applicants about their rights and obligations, and the procedure to follow (Article 12). A similar duty is contained in Article 4 of the Dublin III Regulation.

The Belgian government deliberately infringed this right as part of its dissuasion campaign. It regularly gave letters to asylum seekers containing misleading information. For example, it presented legislative proposals as being already the law in force and stated that asylum seekers who were fingerprinted elsewhere in the EU would be sent back to that state. The letters did not state that asylum seekers with family members could stay in Belgium. Moreover, the leaflet on the Dublin procedure, as required by article 4 (2) by the Dublin III Regulation was not distributed until January 2016, nearly two years late.

Some of these letters were directed to all asylum seekers, while others specifically targeted Iraqi and Afghan citizens. The government did not hide that this kind of ‘information’ was part of a larger dissuasion campaign, and it even admitted so in Parliament and in its latest Policy Plan for 2017.

This kind of dissuasion campaign infringes upon the fundamental right to asylum, as enshrined in Article 18 of the Charter of Fundamental Rights of the European Union. Information should be correct, neutral and complete. The role of specialized NGOs and civil society in informing asylum seekers is insufficiently used by the Belgian government, despite the recognition of their role in Article 21 of the Asylum Procedure Directive. During his visit to Belgium, Nils Muižnieks, Commissioner for Human Rights of the Council of Europe, equally highlighted the role of NGOs.  He urged the authorities to continue to provide support to NGOs active in the field of assistance to asylum seekers and refugees as they play a crucial role, alongside the authorities, in ensuring that Belgium provides an adequate response to the current migratory challenges.

4. The right not to be detained arbitrarily

Liberty is the principle, detention the exception. The Asylum Procedure Directive (Article 26) and the Reception Conditions Directive  (Article 8) lay down the general principle that the detention of asylum seekers cannot solely be based on the fact that they have applied for asylum.

Article 8.3 of the Reception Conditions Directive enumerates the situations in which an asylum seeker can be detained:  to determine or verify their identity or nationality; to determine those elements on which the asylum application is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding;  to decide on the applicant’s right to enter the territory; when he or she is detained subject to a return procedure under the Returns  Directive; when protection of national security or public order requires so; or in accordance with Article 28 of the Dublin III Regulation. In the cases where there is the risk of absconding, Member States may detain the person concerned in order to secure transfer procedures, on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively.

In Belgium, Iraqi asylum seekers were detained solely because they were in a Dublin procedure. The Commissioner for Human Rights of the Council of Europe expressed his concern and called on the authorities to review this practice, especially in cases in which no country had yet been identified to which the asylum seeker could be transferred. The risk of absconding should be effectively assessed in each individual case and less coercive alternatives to detention should be considered.

At the same time, we noticed an increased use of detention for the protection of public order. This option was arbitrarily used in cases that did not attain the necessary level of severity. It has led to detention based on accusations that were later deemed untrue or which the judiciary decided not to prosecute. When courts later reviewed the legality of the detentions, they regularly ruled that they were illegal.

5. Which way forward?

The changes in the Belgian asylum practice have shown us that our asylum policy is no longer a protection policy, but a dissuasion policy. Instead of seizing the opportunity to address the practical difficulties, for example through a ‘crisis’ manual, the Belgian government opted to systematically limit the rights of asylum seekers.

The legal status of asylum seekers has not only been affected by questionable practices like those discussed above, but also by new legislation that restricts the rights of asylum seekers and refugees. Illustrations of this are the temporary residency status for refugees (instead of maintaining the permanent residency status) and the prolongation of the procedure for family reunification. This new legislation was adopted without a prior evaluation of its necessity and without regard to the impact on the human rights of people in need of protection.

The fact is that Belgium was unprepared to respond adequately and humanely to the number of asylum seekers reaching the EU and, more specifically, Belgium. The chaotic response from the EU, its Member States, including Belgium, added to the suffering of people in need of international protection.

A continuous monitoring of developments, a realistic approach and a vision for the protection of refugees are the necessary ingredients for a just and sound asylum policy. Such a policy requires fair procedures and legal assistance from the very start of the procedure. It also entails immediate access to humane reception facilities and reliable and objective information. Not only the Belgian government but governments all over the EU should communicate and work together with civil society to provide for the increased number of asylum seekers in the world and to stand behind an asylum policy that puts human rights and integration of refugees at the heart of the matter.

For questions on this blog entry you can contact the author, Petra Baeyens, legal officer at Vluchtelingenwerk Vlaanderen at petra@vluchtelingenwerk.be.