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FACTSHEET
THE DETENTION OF MIGRANTS IN BELGIUM
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Voluntary return versus forced return
Since the implementation of the European Return Directive in Belgian law on 19 January 2012,
priority has been given to voluntary return. Rejected asylum-seekers have 30 days to prepare
return to their country of origin. In some cases this period can be extended, but the Immigration
Office can also shorten the period if they, for example, suspect a real risk of absconding. Since
2012, rejected asylum-seekers are supposed to be accommodated in an open “return place or
centre” instead of a reception centre2. The pressure in this system is quite high, so the term
”voluntary return” is questionable. In practice, most people abscond and start a life in illegality
before the period of 30 days has come to an end.
The entry ban is also a new measure. People can receive an entry ban ranging from three
years in a case of ignoring a first order to leave the country, to five years in a case of fraud,
or eight to ten years in a case of public order offences. The ban means they cannot return to
Belgium while it is in effect.
If the Immigration Office has the opinion that there is a risk of absconding, then the person
can be detained in order to execute a forced return. Because the definition of “absconding” is
largely open to interpretation, there is a lot of uncertainty about when a person is or is not at risk
of detention.
Although voluntary return has been prioritised, 2012 was still a year of forced returns, with
some controversial secured collective flights. And in the Belgian Federal Government’s budget
we see much a bigger provision for developing the forced return system than, for example, for
supported return and reintegration– the main means of achieving a successful voluntary return.
Legal and practical framework
Detention under Belgian law
The power to deprive a foreigner of his freedom is provided by Belgian law in the 1980 Aliens Act.3
Under this law, the detention of foreigners is a possibility, not an obligation. The law also treats
detention not as a sanction but as a resource to establish a removal.4 Moreover, the detention of
foreigners can only be used as a measure of efficiency in the removal of the person. This means
that nobody can be detained if there is no prospect of removal. In other words, detention can only
be used as a last resort.
Detention in closed centers is an administrative detention, in contrast with detention in
1http://www.kruispuntmi.be/thema/vreemdelingenrecht-internationaal-privaatrecht/verblijfsrecht-uitwijzing-reizen/detentie
(consulted 11 November 2013)
2 A “return place” is a place in an asylum reception centre which is reserved for people in the return procedure.
3 Loi sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (15 décembre 1980) (Aliens Act)
4 AR, 2002 art 5. (Royal Decree 2002)
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FACTSHEET: THE DETENTION OF MIGRANTS IN BELGIUM
© Ann Grossi
2
Caricole detention centre, Belgium.
prisons, which is seen as judicial. The decision to detain foreigners in closed centres is made
by an administration, more specifically by the Immigration Office, which functions under the
auspices of the minister of Asylum and Migration. The Immigration office is an administrative
body charged with the day-to-day administration of most immigration-related policies, including
the management of the detention centres.
A “decision for removal” is a decision that determines the illegal situation of a foreigner and
imposes an obligation for return.5 It is communicated in a document called an “order to leave the
country”. A detention order can be attached to an order to leave the country if there is considered
to be a genuine risk of absconding.
Procedures and legal instruments
The “Chamber of the Council” (chambre du conseil) has the authority to investigate whether an
order of detention is lawful. Since 2012 the Chamber of the Council has also been empowered
to decide on the appropriateness and proportionality of the deprivation of liberty. This chamber
verifies whether the procedure for removal is ongoing, whether removal is still possible and
whether the legal provisions have been respected.
There is no legal ground in Belgian civil law providing for an automatic judicial review of a
detention order.6 It is up to the lawyer to decide to petition the Chamber of the Council. This is an
important difference from the criminal law, where at certain times the lawfulness, appropriateness
and proportionality is automatically reviewed.
From the first day of detention, the detained person can petition for the Chamber of the
Council for release. And he or she can do this once a month. The decisions of the Chamber are
subject to appeal before an Appeal Court.
In practice, few lawyers petition the Chamber of the Council for release. An appeal is also “nonsuspensive” – it will not suspend the removal process. So when a person is subject to an attempt
at removal before the meeting with the judge, the case becomes without object. Because a failed
attempt at removal is always followed by a new detention order, a new petition will be needed.
5 Alien Act 1980 art1°6
6There is however one exception. When the Minister decides to detain an irregular migrant or a rejected asylum-seeker for a fifth
month, he is obligated to refer this decision to the “Chamber of the Council”, which must review the lawfulness of this decision.
FACTSHEET: THE DETENTION OF MIGRANTS IN BELGIUM
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Duration of detention
In principle, the duration of a detention cannot be longer than two months. A prolongation by two
further months is possible with an executed decision for removal, provided that the necessary
measures to implement a removal have been taken in the first seven days of detention, that those
measures were executed with due diligence, and that there is still a possibility to deport the detainee
without unreasonable delay. A second prolongation can only be authorized directly by the Minister.
After five months, a detained person should be released, but this period can be extended to eight
months in exceptional cases relating to the maintenance of public order or national security.
In practice, detention can be much longer then two months. Each time a new decision for
detention is taken, the detention period is said to start anew from that day. Mostly new decisions
are taken after each failed attempt at removal, for example, when a person has refused to take a
flight. Also, when someone decides to apply for asylum during their time in detention, their period
of detention starts again at point zero. Consequently, a person can be detained for more than
eight months. But in total it cannot be beyond the 18 months as determined by the European
Return Directive.
People are released with either a residence permit (for example, in the case of asylum-seekers)
or with a new order to leave the country (for example, in the case of unreturnable migrants).
People in this last group of irregular non-nationals can be re-detained after being released
because their status remains irregular. They are not given any documentation as evidence of
their time in detention. In the case of repeated periods of detention, a person can in practice be
detained for an undefined total period.
Departures from secure detention centres, 2012
Releases
1108
Escapes
28
Repatriations, or transfers
to other EU countries
3669
Voluntary departures IOM
91
Deportations to countries of origin
1560
Source: Dienst Vreemdelingenzaken, FOD Binnenlandse Zaken: Activiteitenrapport 2012
The detention centers
The mission statement of the closed centres reads as follows: “to provide accommodation in a
certain closed place, with respect for human dignity and for the minimum period of time, in order
to facilitate a removal or, in exceptional cases, to grant access to the territory.”7
Five detention centres in Belgium
Officially the first closed centres began operating in 1993. Unofficially, however, one centre
had already been operational since 1988, but it was without any legal status. The Immigration
7 Stated in a presentation about the function of the closed centre of Merksplas 30/04/2013.
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FACTSHEET: THE DETENTION OF MIGRANTS IN BELGIUM
Office manages and controls the centres, and also issues the detention orders. In total there is a
capacity for 648 people.
In 2012 Belgium detained 6,797 persons. 5,320 persons were deported. 78.3% of the detained
persons were effectively repatriated. 1,108 were released again.8 The reasons for release are
not registered or made public, so it is impossible to know how many of them are effectively
unreturnable, as other reasons can lead to a release.
Infrastructure as a prison
The closed centres are strongly protected places. The organization and even the architecture of
the closed centres are much the same as those of prisons, even though the centres do not have
the legal status of prisons. The closed centre at Bruges was a former women’s prison, and the
centre at Merksplas was a detention centre for vagrants. The centres that have been specifically
constructed to be closed centres also have the infrastructure of prisons, with bars, fences with
barbed wire.
Staff and facilities
The biggest investment goes into security staff. At most centres they are conspicuous and
recognizable by their specific uniforms. The Caricole detention centre, next to the national airport,
is an exception, as the guards there do not have uniforms.
Each centre has a social service. The social workers are contracted by the Immigration
Office as “return officers”. In practice, they are called “social workers” but they do not have the
professional status that a normal social worker has. They provide information mostly about the
repatriation conditions and rules.
Educators are in charge of providing recreational, cultural and educative activities for the
detainees. A centre will usually offer creative and entertainment activities (handicrafts, painting,
etc), basic language classes with the exception of Dutch labguage courses, some sport options,
as well as access to books, television and outdoor space.
In all detention centres, a medical service is guaranteed by the presence of nurses and a
psychologist as part-time physicians. Many detainees say that they are very dissatisfied with the
medical services. Access to specialist is often denied.9
Regime and conditions
The regime at the centres is in principle defined by the Royal Decree of 2 August 2002 regarding
the operation of the detention centres, which was renewed in 2009. This sets out the rights,
entitlements, and obligations pertaining to persons placed in detention. Besides this decree, the
closed centres have their own “regulation of internal order”, which governs the application of the
decree to the daily functioning of the centre
In practice, this means that the general norm of a group regime is established at all centres but
with big differences between each centre in the way it works. In Bruges and Merksplas people are
obliged to be in the group at all times. At night, detainees sleep in dormitories accommodating
up to twenty. They are brought together to the refectory at fixed hours for meals and outdoor
8Year report 2012 Immigration Office : http://www.emnbelgium.be/sites/default/files/publications/activiteitenverslag_dvz_2012.
pdf (consulted 11 November 2013)
9
Becoming Vulnerable in Detention. Civil Society report on the detention of vulnerable asylum seekers and irregular migrants in the
European Union (The Devas Project), JRS Europe, pp. 132–133.
FACTSHEET: THE DETENTION OF MIGRANTS IN BELGIUM
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recreation and are obliged to stay together in noisy common rooms for most of the day. They
have to get up, go to sleep, take a shower all together at the same time. In the other centres
detainees are free to roam between their rooms and the common areas. But in general there
is in all centres a considerable lack of privacy. The forced cohabitation, the great diversity of
population in cultures, languages and nationalities, the deprived situation of a person, the feeling
of not having rights, can engender an accumulation of stress that may translate into aggressive
behaviour.
Disciplinary sanctions are provided for in the form of isolation. This can last from 24 hours up
to a maximum of 72 hours, after which the person should be returned to the group. In addition,
a detainee can be subject to a variety of other sanctions, such as denial of access to a phone,
being separated from the group, or restriction of access to television, books, visits, activities.
These sanctions are taken to maintain or guarantee the safety of the staff, the other detainees,
or even for the detainee’s own protection from the others.
Legal assistance
Each detainee is entitled to a lawyer paid for by the Belgian State. They can contact their lawyer
by phone at any time, free of charge, and the visits by the lawyer cannot be forbidden. In two
centres, Bruges and Vottem, as an experiment, primary legal assistance has been established,
from which detainees can get legal advice concerning their individual situation. NGOs visiting the
centres have noticed that this service is not always well known to the detainees.
Contact with the outside world
The Royal Decree of 2002 gives a right to visits by the family of the detainees. Visits by friends of
the detainee are subjected to prior approval by the centre’s director. Lawyers and parliamentarians
can come to the centre at any time of day.
The government provides access to certain NGOs, which visit detainees weekly, provide
them with legal advice, and report on detention practices. NGOs do not have access to the
border zone detention facilities. The three NGOs, Flemish Refugee Action, its French speaking
sister organisation CIRÉ and the Jesuit Refugee Service Belgium, coordinate this visitors group
and share information on the overall situation in the centres and the living conditions of the
people detained there. Group participants discuss the vital issues and the common positions
and strategies to adopt in addressing the public authorities and raising media awareness. This
network of visitors facilitates the close monitoring of conditions in the five detention centres.
Profile of detained people
Different categories of foreigners may be detained in closed centres. Not everybody in the closed
centres find themselves in the same administrative situation. We can define the following groups:
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Inadmissible persons (INAD): migrants who have been denied access to the territory
because they do not comply with the entry criteria. These are persons without the required
travel documents, persons who cannot define the purpose of their travel, or persons lacking
financial resources.
Asylum-seekers at the borders: aliens who also not fulfill the above-mentioned requirements
but who apply for asylum on arrival at the border.
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FACTSHEET: THE DETENTION OF MIGRANTS IN BELGIUM
Asylum-seekers on the territory: mostly persons who have requested asylum more than
once. The Aliens Acts provides fifteen criteria by which an asylum-seeker may be detained.10
Migrants with irregular status and rejected asylum-seekers: The Immigration Office can
detain such people in order to organize their removal, if they have been issued with an “order
to leave Belgian territory” or a “decision for removal”.
©Pieter Stockmans
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A “return house” in Belgium.
Families with minors
In October 2009, the Belgian authorities decided to take measures to limit the administrative
detention of families with children. Specialized housing (so-called “return houses”) have been
created for families awaiting removal. Since there is, only, in principle a legal interdiction on
detaining families with minors, none has been detained in Belgium since October 2009In the
meantime, specialized short-term detention units have been planned for the detention of families
at one of the detention centers, but, for budgetary reasons, this plan has been put on hold. Still,
this means that in the future, as long as the provision exists in law, Belgium still can detain
families. Law still not explicitly prohibits child detention.
10Aliens Act 1980 art 74/6 §1bis.
This factsheet is published as a supplement to the report Point of no Return: the futile detention of unreturnable migrants and can be downloaded at
www.pointofnoreturn.eu It is a result of a collaboration between Flemish Refugee Action (Belgium), Detention Action (UK), France terre d’asile (France), Menedék –
Hungarian Association for Migrants, and The European Council on Refugees and Exiles (ECRE).
Editor: Els Keytsman, Kruidtuinstraat 75, 1210 Brussels. Vluchtelingenwerk Vlaanderen vzw (Flemish Refugee Action)
Design: Louis Mackay/ www.louismackaydesign.co.uk
Published: January 2014
Supported by the European Programme for integration and and Migration (EPIM), a collaborative initiative of the Network of European Foundations (NEF).
Disclaimer: the sole responsibility for the content lies with the authors. The content may not necessarily reflect the positions of NEF, EPIM or the Partner Foundations.