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Articles 74/6 (detention on the territory) and 51/5 (detention under Dublin) of the Aliens Act refer to the need for less coercive alternative measures to be considered before imposing detention. These alternatives were supposed to be defined by Royal Decree, which has still not been adopted. The current Secretary of State claims to prioritize the development of these less coercive measures.[1]
In 2018, the Government decided to create a commission (Commissie Bossuyt) to evaluate the return policy in Belgium. The final report of the commission was proposed in the parliament in 2020. In the report, the Commission Bossuyt also tests the various alternatives to detention that the Government has already put in place.
A first alternative to detention concerns the extension of the deadline for leaving the territory.[2] The purpose of this extension is to allow the person to prepare for his departure. As a result, such an extension can only be granted if it is demonstrated that steps are being taken towards voluntary return, and that departure is feasible in a near future. [3] Figures show that this measure was only requested 9 times in 2019.[4] The measure is also subject to criticism. The criteria for granting the extension are not clear and fall under the discretionary power of the minister or his delegate.[5] Another issue concerns the fact that the order to leave the territory does not mention the possibility to request an extension of the deadline for leaving the territory, this is only mentioned in the law itself.[6] This possibility to postpone departure also fails to address the issue of unremovable people.
A second alternative was the payment of a deposit. According to the government, this measure has not proved to be an effective alternative to detention given that migrants do not have the financial means to pay the deposit. Furthermore, according to the government, such a measure would have as a consequence the extension of the deadline for leaving the territory since the administrative authorities cannot process the payment of the deposit in the normal 30-day period.[7] It is not put in practice anymore.
A third alternative concerned a reporting duty. After receiving an invite for an interview, the families were required to appear before the Immigration Office. The measure was already discontinued after a few months by the government as it yielded no results toward removal. Figures provided by the government show that only 10% of the 150 families that were invited showed up for the interview. The measure was considered problematic in itself according to the government, the aim should be return, not coming to report that one is still in the country[8], and is not put into practice anymore.
Specifically for families with (minor) children, two types of less coercive measures were set up: home accommodation in the context of an agreement under Article 74/9(3) of the Aliens Act and return homes (also called: ‘FITT’). For families with minors, it first attempted to guide families to return from their private house. However, the coaching consists of one return interview due to limited personnel capacity. During the interview the residence file is examined, the willingness to return is assessed and any obstacles to return such as for example medical issues are discussed. Other problems that arise with the procedure are difficult cooperation with local governments and partners as well as the fact that the strict conditions of the agreement deter families rather than increasing their willingness to cooperate. Moreover, in practice the interview with the staff member of the Immigration Office often takes place at the town hall of the place where the private house is situated, which makes it impossible to identify possible changes in the behaviour of the families.[9] The measure being highly inefficient, it was no longer applied in practice.
Families with minors are detained in return homes, also called family units or FITT (see Return houses). In the strict sense, the return homes are considered an alternative form of detention because a detention decision is formally made for each family. In practice however, despite open facilities, families are subject to freedom restrictions (e.g. one adult must be present in the home at all times) and are, under the control of a so-called “return coach”.[10] Children are able to go to school and adults can go out if they get permission to do so.[11] However a recent study conducted by NGO’s concluded that some fundamental rights of children were not respected. The fact that children are removed from their usual living areas, do not always have access to school (above 12 years old, children are almost systematically deprived of access to school) or leisure activities is clearly contrary to the best interests of the child.[12]
Because of the COVID-19 pandemic, the length of stay in the return houses in 2021 rose to an average of 173 days. In 2019, this was still 33,8 days and in 2020 47,35 days.[13] The majority of the families detained in return houses have made applications for international protection at the border (in 2021, 47 out of the 61 families).
The final report of the Commission Bossuyt states that the most effective alternative to detention seems to be the Individual Case Management Support (ICAM), where a return coach is appointed to provide intensive guidance for return. In 2021, 60 new civil servants were recruited for the Immigration Office to start working for the newly founded department of ‘Alternatives to Detention’. They will be responsible to man local provincial ICAM-offices. After receiving an order to leave the territory a migrant will be invited to a series of interviews, where his/her file would be explained to them and a trajectory towards return or other existing procedures would be organised (depending on the individual). Attendance is mandatory and failure to cooperate with return procedures or to show up may result in detention. In 2021, there were several cases of asylum-seekers in the Dublin procedure who were arrested after the first or second appointment with an ICAM coach. Since 2022, Dublin cases are, among other target-groups, the priorities of the ICAM coaches.[14]
Despite all the proposed alternatives, neither the law nor the Royal Decree has yet been amended. This means that until now, no clear gradation of the different possible coercive measures is listed. It is yet too early to report on the concrete impact of these so called ICAM coaches, and whether or not this approach can be considered an effective alternative to detention. However, due to the mass influx of Ukrainians after the Russian invasion, most of the ICAM coaches were deployed in the registration centre at the Heysel to process the requests for temporary protection. As a result, the ICAM coaches could no longer follow up on their files for several months in 2022.[15]
For detention at the border, the Aliens Act does not contain any reference to less coercive measures or to an individual assessment prior to applying detention at the border. UNHCR has stated that this provision does not offer sufficient guarantees against arbitrary detention.[16] While detention was originally provided for those who applied for asylum invoking manifestly unfounded grounds, asylum procedures at the border are now generally considered to be procedures on the access of irregular immigrants to the territory, thus allowing detention until a decision has been made on this (or until the maximum detention period has elapsed). The detention measure is not evaluated on its necessity or proportionality by the Immigration Office, and the judicial review is mostly limited to the question of legality (see Procedural Safeguards: Judicial Review).[17] In 2021, most families that were detained in return houses are families that applied for asylum at the border.[18]
[1] “Full implementation of the obligation under the European regulations to develop less coercive measures for detention effectively and apply them. To this end, the feasibility of the various possible alternatives to detention examined, building on already existing studies. These include return homes, regular administrative and/or police controls, house arrest, bail and electronic surveillance. It will be sought to develop and apply viable alternatives to detention that have an effective return result without creating an organised tolerance policy. These alternatives will be evaluated in a systematic manner in order to adjust them if necessary”: Chamber of Representatives, Policy Note on asylum and migration, 4 November 2020, available in Dutch and French, available at: https://bit.ly/3sJdgMd, 35. This ambition was repeated in the Policy note of 2021; Chamber of Representatives, Policy Note on asylum and migration, 12 July 2022, available in Dutch and French, available at: https://bit.ly/3dbyE9V.
[2] Art. 74/14 Aliens Act.
[3] CALL, case n° 175.622 of 30th of September 2016.
[4] Commissie Bossuyt, Eindverslag van de Commissie voor de evaluatie van het beleid inzake vrijwillige terugkeer en de gedwongen verwijdering van vreemdelingen, September 2020, available in Dutch at: https://bit.ly/3RC5TTw, 57.
[5] Myria, Nota over het eindverslag van de Commissie Commissie belast met de evaluatie va het beleid inzake de vrijwillige terugkeer en de gedwongen verwijdering van vreemdelingen (Commissie Bossuyt), November 2021, available in Dutch at: https://bit.ly/3wRml8G, 14.
[6] Ibid.
[7] Commissie Bossuyt, Eindverslag van de Commissie voor de evaluatie van het beleid inzake vrijwillige terugkeer en de gedwongen verwijdering van vreemdelingen, September 2020, available in Dutch at https://bit.ly/3X2F7Vv, 57.
[8] Ibid., 57-58.
[9] Myria, Nota over het eindverslag van de Commissie Commissie belast met de evaluatie va het beleid inzake de vrijwillige terugkeer en de gedwongen verwijdering van vreemdelingen (Commissie Bossuyt), November 2021, available in Dutch at: https://bit.ly/3wRml8G, 15.
[10] Return coaches are staff members of the Immigration Office that assist the families concerned during their stay in the family unit. For further information, see Vluchtelingenwerk Vlaanderen et al, An Alternative to detention of families with children. Open housing units and coaches for families with children as an alternative to forced removal from a closed centre: review after one year of operation, December 2009.
[11] Royal Decree on Closed Centres, amended in October 2014.
[12] Mineurs en exil – Report (in French), Les maisons de retour en Belgique, une alternative à la détention à part entière, efficace et respectueuse des droits de l’enfant?, January 2021, available at: https://bit.ly/3qwWYqh
[13] Annual Report Alien Office 2021.
[14] Information provided by the Cabinet of the Secretary of State Sammy Mahdi.
[15] Myria, Verslag contactvergadering internationale bescherming 15 juni 2022, available in French and Dutch at: https://rb.gy/c0pmbe, 23-24.
[16] UNHCR, Commentaires relatifs aux : Projet de loi 2548/003 modifiant la loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers et la loi du 12 janvier 2007 sur l’accueil des demandeurs d’asile et de certaines catégories d’étrangers (ci-après « Projet de loi monocaméral »). – Projet de loi 2549/003 modifiant la loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (ci-après « Projet de loi bicaméral »), 4 Octobre 2017, available in French at : http://bit.ly/2ilDJj3.
[17] See also: Marjan Claes, Vasthouding van personen met een mogelijke nood aan internationale bescherming als uitzonderingsmaatregel na de wet van 21 november 2017, December 2019, available in Dutch at: https://bit.ly/39kotIE.
[18] Bron jaarverslag JRS 2021, available in French at: https://rb.gy/jhmnxt.