IMMIGRATION DETENTION AND THE RULE OF LAW

Transcription

1 May 2013 IMMIGRATION DETENTION AND THE RULE OF LAW NATIONAL REPORT: BELGIUM Fanny Declercq, LLM Leiden University

2 Introduction The administrative detention of foreigners is distinct from the criminal detention. Indeed, unlike the latter, no warrant of arrest is issued by a judge or any criminal trial is held following the commission of an offense to base the detention. The decision to detain is taken by the administration, the Immigration Office, on the basis of the regulations on residence of foreigners. The principal norms governing Belgian immigration detention practices are contained in the December 15, 1980 Aliens Act. A posteriori judicial control of the legality of the detention is exercised by the Council Chamber. However, we will see, this control is often not effective and does not suspend the measure of expulsion. The detention of illegal aliens is one of those instruments which are believed to have intended to deter or keep out foreigners who have the idea to migrate to another country. The closed centers are the symbol of the border closure. The Alien Act provides for the establishment of secure centers situated at the border or within Belgian territory to accommodate persons in an irregular situation. These centers are confined spaces subject to dysfunctions and downward spiral 1. They might create violations of fundamental rights: the right to freedom of men, women and even children, sometimes their submission to inhuman and degrading treatment. Belgium has repeatedly been condemned because of the conditions of detention. Applicable Belgian legislation has evolved over the years and the situations where an alien can be detained have increased. The recent developments at the European level have further expanded the possibility of detaining the third-country nationals. This possibility comes from a European directive adopted in December 2008, called directive "Return", which seeks to harmonize standards and procedures applicable in all European countries in terms of return of third-country nationals staying illegally. The text, however, offers few guarantees. Therefore, this report aims to inform about the situation of the aliens detained in Belgium. After analyzing the decision of expulsion (Chapter I), the situations of detention and its duration (Chapter II), we will review the judicial control of the detention (Chapter III). Finally the detention of minors and their families (Chapter IV) and the conditions of detention (Chapter V) will conclude this report. 1 See the report from Amnesty International, CIRE, JRS et VWV: «Douze mois dans les centres fermés : douze vies bouleversées». 2

3 Some quick facts: 2 Dedicated immigration detention sites: 5 (2013) Detention capacity at dedicated sites: 568 (2009) Total persons detained: 6,902 (2008) Total illegal migrant apprehensions: (2011) Total number of request for asylum: (2011) Number of positive decisions for the solving of the illegal situation: % (2011) Estimated undocumented population: 150, ,000 (2008) Legal maximum length of detention: 5 months (8 months in exceptional cases) Total Number of expulsions, repatriation and voluntary departures: (2011) 2 Center for Equal Opportunities and Opposition to Racism, Migration Annual Report 2011 ; see also accessed 17 April It is unfortunate that the Belgian Immigration Office does not include statistics regarding the detention; see accessed 17 April

4 I. The decision of expulsion This first chapter will introduce the decision of expulsion regarding its procedure, the European principle of non-expulsion, the appeal to such a decision and the concept of extraterritoriality. a. Procedure The Schengen Borders Code 3 establishes the criteria to be met and the procedures to be followed during the implementation of border controls. Entry conditions for thirdcountry nationals are listed at the Article 5 of the Schengen Borders Code and the terms of the refusal of entry are fixed in Annex V. Any decision of expulsion taken in accordance with Articles 2 to 4bis of the Aliens Act must comply with the Schengen Borders Code and in some cases, the Visa Code 4. The competent authorities for the control of the external borders are also permitted to register the asylum application of a refugee appearing before them. The Article 50ter of the Alien Act states: "An alien who seeks to enter the Kingdom without satisfying the conditions laid down in Article 2, shall submit his application for asylum with the control authorities to borders, when they ask him about the reasons for his arrival in Belgium. 5 The introduction of an asylum application at the border led to the notification of an order to leave the territory, following a disposition common to all asylum seekers subject to a measure of detention (Article 52/3 2 Alien Act) 6. An applicant for asylum shall be given three documents at the time he or she makes an application for asylum at the border: Annex 25 taking act of the introduction of the asylum request, a decision of expulsion on the model of the Annex 11ter 7 and a decision to maintain in detention that is not defined by Royal Decree and is marked Formulaire A detentie 74/5. b. Principle of non-expulsion The Alien Act does not contain a provision explicitly relating to the principle of nonexpulsion. Article 3 provides, however, that the alien can be deported "unless otherwise provided by international treaty". Article 39/70 states that: "unless otherwise agreed with the concerned party, a measure of removal from the territory or of expulsion cannot be forcibly executed towards the alien during the time limit for bringing a legal action and for examination thereof 8. Such a rule is also valid from the 3 Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code). 4 Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code). 5 L'étranger qui tente d'entrer dans le Royaume sans satisfaire aux conditions fixées à l'article 2, doit introduire sa demande d'asile auprès des autorités chargées du contrôle aux frontières, au moment où celles-ci l'interrogent sur les raisons de sa venue en Belgique. This authority is also found at the Article 71/2 1 of the Royal Decree of 8 October Dans les cas visés à l'article 74/6, 1erbis, le ministre ou son délégué décide immédiatement lors de l'introduction de la demande d'asile que l'étranger tombe dans les cas visés à l'article 7, alinéa 1er, 1 à 11, ou à l'article 27, 1, alinéa 1er, et 3. Dans le cas visé à l'article 50ter, le ministre ou son délégué décide également immédiatement lors de l'introduction de la demande d'asile que l'étranger n'est pas admis à entrer sur le territoire et qu'il est refoulé. 7 Royal Decree 1981, sauf accord de l intéressé, aucune mesure d éloignement du territoire ou de refoulement ne peut être exécutée de manière forcée à l égard de l étranger pendant le délai fixé pour l introduction du recours [contre la décision du CGRA] et pendant l examen de celui-ci. 4

5 introduction of the asylum application. It is in this sense that, following the advice of the Council of State on the draft Bill, the legislator stated in the justification of the new Article 52/3 its compliance with Article 35 of the Directive on the procedure c. Appeal to the decision of expulsion When the application for asylum is rejected, the decision of expulsion becomes enforceable. At this time, it is usually too late to consider an appeal against the decision to deport, notified on the day of arrival. Like any decision notified to someone in detention, the time to appeal before the Litigation Council for Foreigners for a suspension or a cancellation against a deportation order is 15 days (art 39/5, al.2 of the Alien Act 11 ). The execution of the decision being suspended by the examination of the asylum application, there is no interest in bringing an action of extreme urgency on the basis of article 39/82 Alien Act after the notification. But it is possible to activate a demand for suspension introduced previously by requesting a review by way of provisional measures under Article 39/85 Alien Act when the act becomes enforceable. It is appropriate to contest the execution of the measure of expulsion as a precaution if it is likely to result in a risk that the asylum authorities will not consider (Article 39/80 Alien Act 12 ). For example, at the border, the rules of airline companies are such that people are most often deported to their starting point, and not to their country of origin. These migrants may be subject to inhuman or degrading treatment in third countries of residence or countries transit. Because the asylum authorities might only have treated the concerns and potential risks in the country of which the applicant is a citizen, there is a gap in consideration of the need of protection. In the absence of a remedy that allows invoking such a grievance when it may occur, only this plea as a protective measure is available. As far as the situation could be sufficiently predictable, it opens the possibility to apply for provisional measures under Article 39/85 of the Alien Act. The measure of expulsion is a technical one that does not include a mechanism for monitoring compliance with the principle of non-expulsion coupled with Article 3 European Convention of Human Rights. The asylum authorities excluded the possibility of a direct application of Article 3, during the initial examination or during the litigation. 13 The Council of State has confirmed the exclusion of the Convention by the judge and considers that it can be directly invoked only against a deportation. 14 However, Article 3 ECHR does not accept exception 15 9 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status. In Belgium, the asylum procedure at the boarder refers to the Article 35.1 of the Directive. The process should therefore be conforming to the fundamental guarantees of the Chapter II of that Directive. Article 7 regulates the right to stay in the Member State while waiting the examination of the request. 10 Draft Bill modifying the Alien Act, DOC / May Lorsque le recours est introduit par un étranger qui se trouve, au moment de la notification de la décision, dans un lieu déterminé visé à l'article 74/8 ou qui est mis à la disposition du gouvernement, la requête est introduite dans les quinze jours de la notification de la decisión contre laquelle il est dirigé. 12 Lorsqu'un recours en annulation d'une décision relative à l'entrée ou au séjour est lié à un recours contre une décision du Commissaire général aux réfugiés et aux apatrides, l'examen de ce dernier recours est prioritaire. Le cas échéant, le Conseil peut toutefois, dans l'intérêt d'une bonne administration de la justice, décider soit que les deux recours seront examinés et clôturés simultanément, soit que l'examen du recours en annulation sera suspendu jusqu'à la decisión définitive sur le recours de pleine juridiction. 13 Litigation Council for Foreigners, Judgment n 57/707, 10 March State Council n July Soering v. UK ECHR, Request no /88, 07 July 1989, 88. 5

6 d. Extraterritoriality and transit zones States have been tempted to link the denial of access to the territory with the creation of an extraterritorial area. Persons held in such an area would then be deprived of certain rights available from the territory. The existence of such a legal fiction has been rejected by the European Court of Human Rights. 16 Belgian courts also have ruled on the notion of extraterritoriality. The State Council has founded that the transit area is part of the territory Belgium, and has only this peculiarity that foreigners that are admitted there even if they do not meet the requirements to enter the territory, in order to facilitate the air transport; that Belgian police authorities enjoy there the fullness of their competence and can verify the regularity of the documents the transit passengers are carrying, as they can do with respect to any person at any point in the territory. 17 Thus when the Immigration Office refused to register a request for regularization, the State Council ruled: (...) from the constant legal discourse from criminal courts it can be deduced nothing else then that the territory of the national airport indeed under the rule of the Belgian State (...) 18. Today, requests for protection under Article 9b of the Alien Act continue to generate discussions on the possibility that they may be declared admissible for persons who are the subject of a decision denying them the access to the territory. In such a context the Litigation Council for Foreigners noted the jurisprudence of the State Council and confirms that "[the airport transit zone] is merely a legal fiction in which the applicant has the same rights as those who "stay inside" the territory illegally. 19 The Litigation Council for Foreigners judges therefore that the decision of inadmissibility taken against such a request at the border constitutes an obvious error of assessment. 16 Amuur v. France ECHR, Request n 17/1995/523/609, 20 May 1996, 52 ; and Shamsa c Pologne ECHR, Request No /99 and 45357/99, 27 November 2003, State Council No January State Council No January Litigation Council for Foreigners n , 28 October

7 II. The principles of the administrative detention 20 The administrative principles of the detention will be reviewed: the authorities, the place of detention, the duration, the duty of information and the systematic nature of such measure. We will make a distinction between the situation of detention during or beyond the procedure of asylum. a. Detention during the procedure of asylum An alien may be kept in a specific place that is to say, held in a detention center while awaiting either authorization to enter the territory, a decision on the asylum application, or an order to execute its removal. When the detention is done upon arrival at the border of the alien, the place of detention is considered as a place on the borders, even if the detention center is physically located on the territory. The alien is thus considered as not having entered within the territory, and he/she may be the subject of a measure of expulsion. i. During the introduction of the demand at the border The claimant without the required documents for entry into the territory and who applied for asylum at the border may be transferred to a detention center. This decision is notified through an annex 39bis. The period of detention may not exceed two months. If at the expiry of this period, no executor decision of expulsion has been taken, the alien may enter the territory. 21 The time of detention is automatically suspended during the period (15 days) used to appeal to the Litigation Council for Foreigners (LCF). It is also suspended for up to one month when the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) must consider new evidence invoked before the LCF. If an executory decision of refusal of access to the territory and of expulsion was made within two months, this period may be extended by the Minister or the Immigration Office (IO) for a period of two months, if: -necessary steps for the removal of the alien were taken within seven working days of the detention; -they are pursued with due diligence; and -it is still a possibility to effectively remove the alien in a reasonable time 22. After a two-month extension, the Minister may decide to extend the detention for another month. After five months of detention, the alien must be released See Alien Act 1980, Articles 7, 25, 27, 29, 51/5, 52bis, 54, 57/32, 74/6, 71 to Alien Act, Articles 7, 74/5, 3 (La durée du maintien dans un lieu déterminé situé aux frontières ne peut excéder deux mois ) and 74/6, 2 ( La durée du maintien décidé en application du 1 et 1bis ne peut excéder deux mois ) 22 Alien Act, Article 74/5, 3: Le Ministre ou son délégué peut toutefois prolonger le maintien de l'étranger visé au 1er, par période de deux mois: 1 si l étranger fait l'objet d'une mesure de refoulement exécutoire; 2 et si les démarches nécessaires en vue de l'éloignement de l'étranger ont été entreprises dans les sept jours ouvrables de la mesure visée au 1, qu'elles sont poursuivies avec toute la diligence requise et qu'il subsiste toujours une possibilité d'éloigner effectivement l'étranger dans un délai raisonnable. 7

8 In cases where the protection of public order or national security requires so, the detention of the alien may be further extended whenever each time for one month by the Minister. The total duration of detention may not exceed eight months 24. ii. During the introduction of the request on the territory The asylum seeker can be detained and transferred to a closed center from the introduction of the asylum request, when he entered illegally in Belgium or when his or her stay has ceased to be regular, and that he or she: Has been returned or expelled for less than 10 years; Resided for more than three months in one or more countries he left without fear; Is in possession of a valid ticket to a third country; Introduced its application beyond the prescribed time; Avoided the proceedings initiated at the border; Did not comply with the obligation of appearance for at least 15 days; Did not introduce his request when he was questioned at the border checkpoint; Has already applied for asylum; Refused to disclose his/her identity or nationality or gives false information; Has destroyed or got rid of his/her travel document; Has introduced an asylum request in order to thwart or delay a expulsion; Obstructed the taking of fingerprints; Omitted the fact that he/she applied for asylum in another country; Refused to file a report required upon submission of the application for asylum 25. The decision of the Minister or his delegate is notified through the delivery of an Annex 39a to the applicant. The period of detention may not exceed a two months period but may be extended by the Minister by two months, if the alien is subject to an executory measure of expulsion and if the expulsion proceedings are been taken within 7 days of the decision, if they 23 Alien Act, Article 74/5, 3: Après une prolongation, la décision visée à l'alinéa précédent ne peut plus être prise que par le Ministre. La durée totale du maintien ne peut jamais excéder cinq mois. 24 Alien Act, Article 74/5, 3: Dans les cas où la sauvegarde de l ordre public ou la sécurité nationale l exige, la détention de l étranger peut être prolongée chaque fois d un mois, après l expiration du délai visé à l alinéa précédent, sans toutefois que la durée totale du maintien puisse de ce fait dépasser huit mois. 25 Alien Act, Article 74/6, 1er bis. 8

9 are pursued with due diligence and if subsists the possibility to remove him or her while the total duration of detention may not exceed 5 months. However, this period may be extended up to 8 months for reasons of the safeguard of the public order or of national security. 26 Again, the holding time is automatically suspended during the period used to appeal to the LCF (= 15 days). On the other hand, the holding period is suspended for up to one month when the GSRS must consider new evidence introduced before the LCF. iii. During the examination of the demand by the Immigration Office (Phase Dublin -annex 39ter) During the examination of the application 27 : There are three cases of detention in this context, which may not exceed one month: When the alien has a residence permit or a visa issued by another Member State, whose validity has expired; When the foreigner declares he has resided in another Member State; When the fingerprints demonstrate that the alien has resided in another Member State. In principle, the detention may not exceed one month. However, when the processing of the request is particularly complex, this period may be extended by one month. For the execution and accomplishment of the transfer 28 : On the other hand, if Belgium is not responsible for examining the application, the asylum seeker can be maintained in detention for the time strictly necessary to transfer, the holding period may not exceed one month. However the possible anterior duration of detention is not taken into account. iv. After a decision of the CGRA based on Article 52 (Annex 39) 29 When the GCRS refuses the asylum request based on criteria of Article 52, the asylum seeker may be detained during the examination of the appeal by the LCF. b. Detention beyond asylum Alien Act, Article 74/6, 2: La durée du maintien décidé en application du 1 et 1bis ne peut excéder deux mois. Lorsque l'étranger visé au 1er fait l'objet d'une décision de refus de séjour, le Ministre ou son délégué peut toutefois prolonger son maintien par période de deux mois si les démarches en vue de l'éloignement de l'étranger ont été entreprises dans les sept jours ouvrables, après que la décision de refus de séjour est devenue exécutoire qu'elles sont poursuivies avec toute la diligence requise et qu'il subsiste toujours une possibilité d'éloigner effectivement l'étranger dans un délai raisonnable. Après une prolongation, la décision visée à l'alinéa précédent ne peut plus être prise que par le Ministre. Après cinq mois de maintien, l'étranger doit être remis en liberté. Dans les cas où la sauvegarde de l ordre public ou la sécurité nationale l exige, la détention de l étranger peut être prolongée chaque fois d un mois, après l expiration du délai visé à l alinéa précédent, sans toutefois que la durée totale du maintien puisse de ce fait dépasser huit mois. 27 Alien Act Article 51/5, 1er. 28 Alien Act Article 51/5, Alien Act Article 74/6 9

10 In some cases, the Minister, or sometimes the Immigration Office may decide to bring a person to the border, and detain him in order to perform this action, in the following cases: The alien that is at the border and can be deported (Annex 11); An alien that is authorized to stay for less than three months and who receives an order to leave the territory: o If the Minister or the IO considers it necessary; o For the period strictly necessary for the execution of the expulsion measure; An alien against whom a royal decree of expulsion or a ministerial decree of return was made: o In exceptionally serious circumstances o If the Minister considers it necessary for the period strictly necessary for the execution of the expulsion; An alien who has received an order to leave the territory and was expelled or returned, and did not comply within the time limit. c. Duration i. Principle Subject to certain exceptions, the law provides that the alien may be detained for his removal from the territory for the time strictly necessary to implement the measure while the time in custody cannot exceed two months. 31 A two-month extension of the initial period of detention is possible in certain situations: if the procedures for the removal were undertaken within the 7 days after the decision becomes enforceable; if these steps are carried out with due diligence, and if it is still a possibility to effectively remove the foreigner reasonable time. 32 After a first extension, a new decision of extension may be taken by the Minister. After five months of detention, the alien must be released. However, if the preservation of 30 Alien Act, Articles 3 & Alien Act 1980, Articles 7, 74/5, 3 et 74/6, 2. Sous réserve de certaines exceptions, la loi prévoit que l étranger peut être détenu en vue de son éloignement pendant le temps strictement nécessaire à l exécution de la mesure sans que la durée de détention ne puisse dépasser deux mois. 32 To extend the initial period of detention of a person who has applied for asylum at the border, the asylum seeker must also have been the subject of a executor measure of expulsion (Alien Act 10980, Article 74/5, 3). 10

11 the public order requires it, the detention is extended from month to month after the expiry of five months with a maximum of eight months of detention in total. 33 In case of expiration of the delays or in the absence of a decision to extend the detention of a foreigner who is the subject of a deportation order, he/she will be allowed to enter in the Kingdom of Belgium and the decision of expulsion shall be treated as an order to leave the territory. 34 The resumption of the time extension in case of notification of a new detention decision in the event that the alien objected to his expulsion: The Court of Cassation believes that a new measure of deprivation of liberty, which cancels the prior period of detention may be taken if the foreigner unreasonably opposes his/her expulsion. 35 So for example, if an alien refuses to board the plane that would take him away from the territory, the Immigration Office may notify a new decision of detention and the time counter would start again. 36 ii. Exceptions Depending on the situation, the detention period may vary. If the alien is a refugee claimant for which an application for return is made to another State party of the Dublin II Regulation, the detention is limited to one month. However, if the processing of the application is particularly difficult, the detention may be extended for a period of one month. 37 If the foreigner is an asylum seeker and receives a negative decision by the CGRA, the time of his or her detention will be extended (the law refers to suspension of the period ) according to the number of days needed to appeal before the LCF (maximum 15 days). If the LCF decided to refer the matter to the CGRA for further consideration, then there can also be a suspension of the delay for a month maximum. 38 d. Duty of information The Chamber of indictments in Brussels recently declared that a measure of deprivation of liberty was unlawful when the foreigner had not been informed promptly in a language which he understands about the reasons of his arrest. 39 A new Article 74/18 has been introduced in the Alien Act, specifying that: A written or oral translation of the main elements of the expulsion decision, with if it is the case the prohibition of entry, including information regarding the possibilities of appeals and pleas in a language that a national of a third country understand, or it be reasonable to 33 Alien Act 1980, Articles 7, 74/5, 3 et 74/6, 2 Après une première prolongation, une nouvelle décision de prolongation peut être prise par le Ministre. Après cinq mois de détention, l étranger doit être libéré. Toutefois, si la sauvegarde de l ordre public l exige, la détention est prolongée de mois en mois après l expiration du délai de 5 mois avec un maximum de 8 mois de détention au total. 34 Alien Act 1980, Article 74/5, 4: En cas de dépassement du délai ou d absence de décision de prolongation de la détention d un étranger ayant fait l objet d une décision de refoulement à la frontière, celui-ci sera autorisé à entrer dans le Royaume et la décision de refoulement sera assimilée à un ordre de quitter le territoire. 35 Cass., 28 September 1999, Bull., 1999, n 11, p. [1220]. 36 This position is not consistent with the Directive "Return" and certainly violates the right to liberty under Article 5 1 of the European Convention on Human Rights. 37 Alien Act 10980, Article 51/5. 38 Alien Act 1980, Article 74/6, 2, al Bruxelles (mis. acc.), 29 November 2011, inédit. 11

12 suppose he understand, can be obtained on request from the alien to the minister or his delegate. This is explicitly stated in the decision 40. e. Systematic detention at the border Currently the detention of asylum seekers at the border is the rule and not the exception. When a person files an application for asylum at the border, the Immigration Office denies access to the territory and takes a decision to detain the alien in a transit center for the time of the examination of the asylum application at the border. Following his visit to Belgium, Mr Hammarberg, the Commissioner for Human Rights (Council of Europe) challenged the practice of detaining asylum seekers at the border: The detention of certain asylum seekers appears questionable especially since detention is systematic for many asylum seekers. The Commissioner invites the authorities to make those persons who lodge their asylum applications at the border subject to the same rights and procedures as other applicants. More generally, he wishes to point out that asylum seekers have not committed any offence, and that their systematic detention in some cases is clearly at odds with the need to base each detention decision on individual circumstances. 41 Conclusion The detention may not in theory exceed five months maximum. But the Foreign Office diverts the law by taking a new decision of detention, which is not considered as a prolongation, at every attempt of expulsion who failed. This can thus be considered as an unlimited detention "Une traduction écrite ou orale des principaux éléments de la décision d'éloignement, assortie le cas échéant d'une interdiction d'entrée, y compris des informations concernant les voies de recours dans une langue que le ressortissant d'un pays tiers comprend, ou dont il est raisonnable de supposer qu'il la comprend, peut être obtenue sur demande de l'étranger auprès du ministre ou de son délégué. Ceci est mentionné explicitement dans la decisión. 41 Report by the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, on his visit to Belgium December 2008, for the attention of the Committee of Ministers and the ParliamentaryAssembly, Strasbourg, 17 June 2009, See accessed 17 April

13 III. Control of the detention After reviewing the principles of the control, the third chapter offers an overview of the procedure, the nature and the specificities of the control and the notion of arbitrariness. Further, the necessity of the detention, the legality of the detention of vulnerable persons and the impact of the detention on the procedure of asylum will be addressed. a. Principles Any measure of detention may be subject to judicial review. The second paragraph of the Article 71 of the Alien Act provides that: "the alien kept in a specific place on the borders, pursuant to Article 74/5, may appeal against this measure, by request to the Chamber of the Council of the criminal court of the place where he is held 43. Any decision of deprivation of liberty may be appealed to the Council Chamber of the Criminal Court. Although the detention at the border is the consequence of the decision of expulsion, it is not necessarily conditional upon it. Both decisions are autonomous and the detention must meet its intrinsic criteria of legality. 44 The decision of refusal of entry, of denial of stay, or the expulsion decision may also be the object of a plea in suspension and annulment before the Litigation Council for Foreigners. If the alien was within the territory before being arrested, the competent court is the one of his residence in Belgium or the place where he was found. If the alien was at the border and did not enter the territory, the competent court is the place where he is detained. For the closed centers, the competent criminal courts are the following: INAD, 127 (now replaced by le Caricole) and 127bis : Brussels. Closed center of Brugge: Brugge Closed center of Vottem: Liège Merksplas: Turnhout. The appeal is brought by motion filed at the court, and the Council Chamber sets a hearing within 5 working days. It does not have the power to assess the appropriateness of the decision, but only the conformity of the decision with the law. The Council Chamber shall make an order either of release either of confirmation of retention. The alien, the public prosecutor, the Minister or the Foreign Office may appeal the order to the House of Indictments of the competent Court of Appeal within 24 hours of notification of the order. The House of Indictments must statue within 15 days of the appeal. An appeal may be lodged against the judgment of the House of indictments to the Cassation Court (Supreme Court). 43 L'étranger maintenu dans un lieu déterminé situé aux frontières, en application de l article 74/5, peut introduire un recours contre cette mesure, en déposant une requête auprès de la Chambre du Conseil du tribunal correctionnel du lieu où il est maintenu. 44 S.D. v. Greece ECHR, Request No /07, 11 June

14 b. Submission and procedure before the Council Chamber The control of the administrative detention has been assigned to a criminal court: the Judge of the Council Chamber of the Tribunal of First Instance and, on appeal the Chamber of Indictments of the Court of Appeal. 45 These judges being normally responsible for the control of the legality of detention in criminal matters, the law refers to the procedure, regulations on detention preventive. 46 The administrative detention, however, is distinct from the preventive detention: the foreigner is not suspected of having committed an offense; the control is not automatic: a request must be submitted by the foreigner within five days of detention; the control is on the administrative decision of the Immigration Office; the plea before the Council Chamber is a non-suspensive appeal against the removal, which implies that the foreigner is likely to be removed before the Council Chamber's decision on the legality of the detention. The alien may appeal against the detention order by filing a complaint before the Council Chamber. There is no formal condition. The Alien Act of the 15 December 1980 indicates to which Council Chamber recourse should be taken: for the persons apprehended at the border, it is the Chamber of the place where the alien is hold which is competent, for the alien who is deprived of its liberty after entering the territory, it is either the Council Chamber of the place of residence either the place where he was found. 47 The request may be reintroduced from month to month. The parties present at the Council Chamber are: the Minister or his delegate, the foreigner, and the Crown (prosecution). 48 The Council Chamber must decide within 5 working days of the filing of the request. 49 If not, the alien is released. The case file is made available to the lawyer the two days before the hearing. The orders from the Council Chamber may be appealed by the alien, the prosecutors and the Immigration Office. This appeal must be introduced within twenty-four hours of the pronouncement. The Chamber of Indictments pass sentence within 15 days after the commencement of proceedings. The alien is detained during the time of the appeal against an order of liberation. The procedures are not suspensive, the alien can be expelled before the House of Indictments take a decision. A petition of Cassation (last resort) is still possible 45 The fact that this control has been assigned to criminal court surprised to the extent the judge might be unfamiliar with the administrative law. This skill seems to underline the confusion made in society between migration and public order offenses. It would have been helpful to have this control in a civil court, used to monitor the protection of individual rights, or a court specializing in immigration law. 46 Alien Act 1980, Article Alien Act 1980, Article The presence of the prosecutor is surprising since, in this case, the alien is not the subject of an investigation or prosecution. 49 Alien Act 1980, Article 72. al

15 against the judgment of the House of Indictments. The alien shall be released if the decision of liberation is cast res judicata (it is no longer subject to any appeal). c. Nature of the control The Council Chamber verifies whether the custodial measures and the expulsion comply with the law without deciding on their appropriateness. In Belgian law, there are two types of control: (1) over the legality of the act (i.e., did the authority have the power to take the act, and did the administrative authority respect all the formalities?) and (2) over the administrative measure in itself and its appropriateness (i.e., was it wrong or right for the administration to take such an act?). The boundaries between the control of legality and the control of opportunity are not easy to determine. 50 In 2009, the Supreme Court also confirmed that the decision on the detention is not subject to the obligation from the administration to find a risk of escape on the part of foreigner detained. 51 The Court held that the Court of Appeal had carried out a control over the opportunity and had therefore exceeded the limits of its control by saying that the Office of the Foreigners could easily find the person in question and that therefore the detention was not necessary. However, the detention is justified in law if it is necessary to ensure the effective removal of the person. The control over the legality includes both the decision to hold the individual in a closed center that the decision of refusal of a residence permit and the decision of expulsion that is its base. 52 d. Notion of arbitrariness The internal legality targets both national and international provisions directly applicable in the domestic legal order. The judicial review must therefore focus on the following national standards: The Constitution (particularly Articles 10 and 11 regarding the principles of equality and non-discrimination); The Alien Act of 15 December 1980 (the hypothesis of detention, the obligation of reasoning); The Act regarding the formal motivation of administrative acts of the 29 of July 1991; The European Convention of Human Rights. For example, in a case where an Iraqi national had applied for asylum and for which the Immigration Office had decided that it was, based on the Dublin Regulation, be returned to Greece, the judge ruled that there was a risk that the applicant, in case of transfer to Greece, would suffer inhuman and degrading treatment in violation of Article 3 ECHR and that, therefore, the decision was illegal Read de Sylvie Saroléa, «Contrôler la détention des étrangers en séjour irrégulier : comment et pourquoi?» (1997) RDE 93, 200 ; and C. PASBECQ, «De la frontière entre la légalité et l opportunité dans la jurisprudence du juge de l excès de pouvoir» (1980) R.D.P., Cass. (2009) 4 November, RDE 157 (2010), 11 : The absence of a risk of clandestineness adds to the law a requirement that does not exist, and bring to the court a control that Article 72, paragraph 2 of the Act does not assign. 52 Cass., 23 November Brussels (mis. acc.), 8 avril( 2010) RDE 157,

16 Finally, it should be noted that other remedies may also be usefully introduced: Plea to the Litigation Council for Foreigners for a suspension in extreme emergency, based on Alien Act 1980 Article 39/82, 2, paragraph 1, to obtain the suspension of the imminent execution of a removal order; Seizure of the President of the Court of First Instance for a summary judgment, on the basis of Article 584 of the Judicial Code; Request for provisional measures to the European Court of Human Rights (Article 39 of the Rules of Court). These remedies are not, strictly speaking, appeals against detention, they are in fact appeals against the decision of expulsion (orders to leave the territory). Insofar as the detention is based on a decision of expulsion and seeks to enforce it, it seems important to also address these decisions. e. Necessity of the detention i. At the European Court of Human Rights The moment when a detention switches to being arbitrary is likely to evolve in the circumstances of the case of species the European Court of Human Rights has to know. In recent cases, the ECHR opens a breach in its case law putting forward the vulnerability of asylum seekers. The judgement in Kanagaratnam and Others v. Belgique 54 shows that despite the acceptance of a legal framework for a wide use of detention at the border of asylum seekers, States have an incentive to better manage their practice to prevent detention from turning arbitrary. Thus, the Court found nothing wrong with the initial detention of Ms. Kanagaratnam which was correctly determined by legal means. However, from the time when the family lodged a second request of asylum at the border and that the application is taken into consideration, the Court found no justification in maintaining detention beyond the first term of two months, knowing that the place of detention is particularly inappropriate for the proper development of the children. 55 In this case, the specificity of the refugee status is ultimately imposed. ii. In European Law Different legal provisions clearly distinguish the holding of an asylum seeker to the detention of a person in the situation of an irregular stay. In the judgment Khadzoev the European Court of Justice enumerates the legal bases surrounding the detention of asylum seekers and confirms that the detention of asylum seekers and persons residing illegally fall under two distinct legal regimes Kanagaratnam et Autres v. Belgique ECHR, Request No /09, 13 ecembre op cit ECJ Said Shamilovich Kadzoev (C-357/09) 30 November 2009,

17 If the detention is therefore permitted by European law, the terms of the Directive Reception 57 demonstrate that its implementation goes through an examination of its necessity. The decision must include an assessment of the applicant's personal situation and must indicate the circumstances that make detention necessary. Although Belgian national courts show a strong reluctance to exercise such a control of the necessity, the Chamber of Indictments of the Brussels Court of Appeal summarized all the criticism that can be expressed against a decision taken exclusively as a result of the police measure blocking access to the territory: (In this case...) the administration has argued that the detention was justified by the fact that the applicant tried to enter the country without satisfying the conditions laid down in Article 2 of the Act of 15 December 1980, declared he was a political refugee asked at the border to be recognized as such and that the holding of the person in a specific location on the border is considered necessary to ensure the potential expulsion from the territory.'' Such a general formula, which contains no reference to the circumstances of the situation of the alien (...) is stereotyped, and therefore does not meet the obligation of motivation required by law, with regard to something as heavy as a deprivation of liberty, which is an infringement of a fundamental right. It is impossible, on the basis of such a motivation, for the alien to know the reasons justifying concretely his detention, rather than resorting to other measures, if necessary binding, and therefore, it is impossible for the Council Chamber and the Chamber of Indictments, to exercise their control, however limited. 58 f. Vulnerability It is in situations of vulnerability that the lack of concrete reasoning is blatant. i. The Directive When assessing the application of the Directive Reception, the European Commission insists that detention is an exception to the general rule of free movement that can be used only when it is necessary: However, given that according to the Directive detention is an exception to the general rule of free movement, which might be used only when "it proves necessary", automatic detention without any evaluation of the situation of the person in question is contrary to the Directive. Furthermore, the length of detention, except in duly justified cases (e.g. public order), which prevents detained asylum seekers from enjoying the rights guaranteed under the Directive, is also contrary to its provisions Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, article 7.3. : When it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with their national law. 58 Brussels, 29 July 2011 (n non notified). 59 Report from the Commission to the Council and to the European Parliament on the application of directive 2003/9/EC, 26 November 2007, available at 17

18 The automatic detention without assessing the personal situation of the asylum seeker who is concerned by the measure is contrary to the Directive. In addition, the European Commission noted that some countries, including Belgium, did not transpose the Directive so that it could covers asylum seekers in detention. The Directive does not, however, allow for exceptions. 60 Finally, the Commission finds that some states, including Belgium, don t have a procedure for identifying vulnerable profiles. It therefore asks how the rights guaranteed by the Directive can be effective if the people with special needs are not able to be identified. 61 Based on these findings, the Commission considers that problems could sustain serious in Member States which do not prohibit the placement detention of asylum seekers with special needs. 62 ii. The Reception Act The Act of the 12 January 2007 on the reception of asylum seekers (hereinafter Reception Act) implements the EU Reception Directive in Belgian law. Article 22 1 provides: "Within thirty days following the designation of the compulsory place of registration, the individual situation of the beneficiary of the reception is examined to determine if the reception meets their specific needs" 63. Section 2 of the same article continues: "To this end, an examination of the individual situation of the beneficiary of the reception shall include the a priori no detectable signs of a possible vulnerability such as present in people who have suffered torture or other serious forms of psychological, physical or sexual violence 64. Under section 36 of the Act, it is said necessary to work with associations or agencies to meet the specific needs of vulnerable persons. The profile of the persons referred to is given in Article 36: "In order to meet the specific needs of vulnerable persons such as minors, unaccompanied minors, single parents with minors, pregnant women, people with disabilities, victims of human trafficking, victims of violence or torture or persons elderly, the Agency or the partner conclude agreements with specialized institutions or association 65. This enumeration which 60 However, serious problems exist in terms of the applicability of the Directive in all premises hosting asylum seekers. As many as seven Member States (UK, BE, IT, NL, PL, LU, CY) do not apply the Directive in detention centres. Other Member States (e.g. AT) do not apply it in transit zones. As the Directive does not allow for exceptions as far as its applicability in certain facilities for asylum seekers is concerned, its provisions apply to all types of premises, including detention centers (at page 2). 61 Furthermore, in some Member States (UK, DE, AT, BE, LU, EL, IT, SK, SI) no identification procedure is in place. Despite the fact that it is not literally an obligation, there might be serious doubts as to how and whether persons with special needs are actually identified in Member States with no such tool. Identification of vulnerable asylum seekers is a core element without which the provisions of the Directive aimed at special treatment of these persons will lose any meaning (at page 9). 62 Serious problems might arise in Member States which do not exclude the detention of asylum seekers with special needs. ( ) Given their particular situation, detention of vulnerable asylum seekers should be considered only as a last resort, in duly justified case (page 9-10). 63 Dans les trente jours qui suivent la désignation de son lieu obligatoire d inscription, la situation individuelle du bénéficiaire de l accueil est examinée en vue de déterminer si l accueil répond à ses besoins spécifiques. 64 A cette fin, l examen de la situation individuelle du bénéficiaire de l accueil porte notamment sur les signes non détectables a priori d une éventuelle vulnérabilité telle que celle présente chez les personnes ayant subi des tortures ou d autres formes graves de violence psychologique, physique ou sexuelle 65 Afin de répondre aux besoins spécifiques de personnes vulnérables telles que les mineurs, les mineurs non accompagnés, les parents isolés accompagnés de mineurs, les femmes enceintes, les personnes ayant un handicap, les victimes de la traite des êtres humains, les personnes victimes de violence ou de tortures ou encore les personnes âgées, l Agence ou le partenaire conclut des conventions avec des institutions ou associations spécialisées. 18

19 contains the terms of Article 17 of the Reception Directive should not be considered exhaustive. Because the Belgian Act that transpose the Directive into Belgian law does not contain provision explaining its application to the exceptional situation arising from the detention of asylum seekers (at the border or not), they fall outside the scope de facto. Without taking into account the specific field of detention, the protection safeguards provided by the Reception Act are inapplicable in practice, what constitutes a failure to transpose. iii. The legality of the detention of vulnerable persons In the context of judicial review carried out by the Council Chamber, it is therefore necessary to emphasize firstly that the Directive on the Reception now regulates the detention of asylum seekers. Then, it is important to point out the shortcomings in the transposition of this Directive and to see concretely what were the measures taken against the situation of vulnerability. When people are particularly likely to benefit from the guarantees of Article 17, they shall not have to be deprived of such guarantees by being in detention. Finally, this control of legality may also be exercised with regard to the conditions of detention suffered by the asylum seeker. When it comes to judging whether detention conditions are suitable, the vulnerability is an important parameter. g. Impact of the detention on the procedure of asylum The use of expedited processing of asylum claims in cases of detention carries increased risks of a lack of investigation. The short notice given to the GCRS to investigate and decide on the application may be dissuasive to take certain acts instructions. While in theory, the task to establish and evaluate all relevant facts must be conducted jointly by the applicant and the examiner 66, such a charge will almost always lie exclusively on the applicant. The main problem is the ability to send in a very short period of time all the relevant documents to establish the facts when the asylum seeker arrives most often with the hands empty. i. Accelerated procedure The Committee of Ministers of the Council of Europe warned against the use of automatic expedited asylum. In the wake of the recommendations regarding the vulnerability, the Committee also believes that: 3. When it becomes apparent that a case is particularly complex and that this complexity falls to be addressed by the state where the application was lodged, it should be excluded from the accelerated procedure. 67 According to the same Guidelines: 4. Asylum seekers may only be deprived of their liberty if this is in accordance with a procedure prescribed by law and if, after a careful examination of the necessity of deprivation of liberty in each individual case, the authorities of the state in which the asylum application is lodged have concluded that the presence of the asylum seekers for the purpose of carrying out the 66 UN High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, January 1992, Guidelines on human rights protection in the context of accelerated asylum procedures, adopted by the Committee of Ministers on 1 July 2009 at the 1062nd meeting of the Ministers Deputies. 19