Since its creation, JRS Belgium has carried out weekly visits to the closed centres where foreigners, without legal residency, are detained before they are removed to their country of origin. The experience gained over the years is shared with the JRS Europe with the aim of collaboration with other countries of the European Union and within the Transit platform in view of our collaboration with all the organisations accredited to visit closed centres in Belgium.
Based on our experience gained over year of visiting immigrant detention centres, the JRS Belgium draws the following conclusions:
- The administrative detention of third country nationals;
- The alternatives to detention;
- Families and detention;
- Vulnerable people;
- Legal assistance;
- Removal of third country nationals.
- Asylum seekers: Asylum seeker shall not be detained during the course of the application procedure. This also applies for asylum seekers at the border, as well as those whose application is under the Dublin procedure. Administrative detention cannot be used to deter a person from applying for asylum.
- Illegal migrants: The illegal migrant may only be detained if there are objective reasons for which he/she constitutes a threat to the public order and security. If detention cannot be avoided, it should only be applied according to the proportionality principle. The detention should be as short as possible, and should never exceed two months. In order to avoid detention, the legislators must foresee alternatives for the relevant authorities to implement. Those alternatives must respect human dignity and the fundamental human rights. (see below: alternatives to detention)
- Special circumstances: Authorities must take into consideration the individual’s particular vulnerability. (see below : detention of families and detention of vulnerable people)
- Monitoring the circumstances of the detention: Detention should only be used if decided by an independent judicial authority. In any other circumstances it is subject to an official review by a judicial authority in the exercise of its duty, within 48 hours. Even in such circumstances, the detention decision should be submitted every 30 days for review by a judicial body. The “magistrates chamber” must speak out, not only about the legitimacy of the detention, but also about the suitability of such a procedure.
- Legal assistance: In due course, detainees are entitled to free, competent, and immediately available legal assistance. They must be informed immediately about the reasons for their detention, as well as the means available to them to appeal against the decision, in a language they understand. The costs of a professional interpreter should be carried by the State.
- Daily life in closed centre: The living conditions in closed centres must comply with the fundamental Human Rights. This includes food, accommodation, the access to medical assistance, the protection of privacy, the use of the telephone and postal services, the participation in activities inside the centre or outdoors. The living conditions should not be similar to a prison environment. The detainees have the right to receive visitors, be it on social, family or religious grounds. They are entitled to receive trainings and practice their religion.
- Monitoring the living conditions: Representatives of competent non-governmental organisations, as well as the United Nations High Commission for the Refugees (UNHCR) have permanent access to the detention centres, with no obligation to visit a person in particular. On both national and European levels, independent control bodies are in place to monitor the use of administrative detention towards asylum seekers or illegal migrants, and to inspect closed centres. See the Belgian contribution to the survey Becoming vulnerable in detention.
To know more about the joint position of the JRS EUROPE concerning the administrative detention of asylum seekers and illegal migrants in Europe, click here.
- On principle, rejection for detention: The law should explicitly state the rejection of detention a priori and implement it accordingly. Dealing with individual cases within the community, and without illegal migrants from their freedom, should be our model;
- Looking for alternatives: States need to actively seek to take into account the expertise and skills of asylum seekers and migrants, as well as civil society’s competent organisations when looking for alternatives to detention. Alternatives should not lead to additional ways of detention. Rather, they should lead to a substantial decrease in the number of detainees (all ways considered). Alternatives to detention should not be understood as alternative “means” of detention, such as the electronic tag, which partially or completely deprives someone from the freedom of movement, as well as the right to security;
- Providing information: Anyone deprived of their freedom is entitled to general and individual support from the very beginning of the application procedure for asylum or migration until the final decision. Each person ought to be immediately and fully informed about his/her legal situation in a language he/she understands, so as to allow them to take all necessary actions to clarify that situation;
- Legal aid/assistance: Anyone deprived of their freedom should have access to professional legal aid, free of charge, from the very start of the asylum or migration procedure until the final decision. Individuals should have access to non-governmental organisations which offer support to migrants, as well as to the United Nations High Commission for the Refugees (see below : Legal advice);
- Living conditions: Alternatives to detention must provide overall good welcoming structures to those persons and families concerned, including decent living, medical care, psychological and social support, education and training, and other basic needs. Those structures must comply with the fundamental Human Rights, and should in no way resemble any imprisonment or incarceration facility. Those people concerned should undergo thorough physical, social and psychological examination, in order to determine their level of vulnerability as soon as possible and to deploy the necessary care (see below : vulnerable people);
- Repatriation to the country of origin: Preference should be given to voluntary return to the country of origin;
- Evaluation: EU Member States will set up official bodies in charge of monitoring alternatives to detention and their results. Those bodies will also assess the human, social, and financial costs of those programmes. The information will be regularly fed back to the competent authority of the Member State, as well as to the EU, and will be publically available.
Find out more about the joint position of the JRS Europe regarding the alternatives to detention and click here.
- No detention of children: In the name of the Declaration of the Rights of the Child, we advocate for a ban on children’s detention (even for 48 hours or less). We, therefore, ask for the amendment of art. 74/9 of the law of 15th December 1980 concerning the access to the territory, the stay, the installation, and the expulsion of foreigners, and of art. 41/2 of the law of 12th January 2007 concerning the reception of asylum seekers and other groups of third country nationals.
- No detention of families: Families with children, even if they are of age, cannot be detained in closed centres because family life is not possible in detention.
- No detention or deportation of a parent: We deem it essential to preserve the family’s unity out of respect for family life (art. 8 of the European Convention on Human Rights) and in the child’s best interest. We condemn the separation of
families in view of the expulsion of one of its members. Should there be any derogation to this principle, the decision must be duly and expressly motivated by an order to leave the territory and be approved by a judge at the beginning of the detention. In case of problems within the family, the detention or expulsion of one of the parents is never a suitable solution. The Aliens Office should work out a solution taking into account the child’s best interest. It can only split up a family upon the advice of the Special Youth Service.
- Broader definition of parenthood: We are in favour of a broader definition of parenthood than the strictly defined family. This definition embraces the different levels of family bonds, including all those (adult child, grandparent, and so on) living under the same roof as the child(ren).
- Asylum seekers: We demand that families applying for asylum at the country’s borders be integrated into the system of open asylum centres, and not in return houses.
- Removal of families without valid residence permit: We ask for the removal of irregular families to be carried out from their residence, if they have such a place; or from an (open) refugee centre, if they don’t have a residence of their own. Only in last resort shall they be transferred to a return house.
- Return houses: Regardless of the context, detaining families in closed centres is never acceptable (see above point 2). Return houses - legally classified as detention centres - also put restrictions on freedom that is only acceptable as a last resort. We advocate for lesser coercive alternatives to detention. Families shall have the freedom and the time necessary to elaborate a new life project which takes care of the children’s interests. We also plead for continuous support and/or accompaniment to the families (especially regarding children’s education).
- No detention of vulnerable people: Minors, pregnant women, women who are breastfeeding, traumatized persons, persons in need for physical and mental care , persons older than 65 years, persons suffering from severe or chronical diseases, unaccompanied minors, and victims of human trafficking, torture, rape, and other forms of psychological, physical or sexual violence shall never be detained.
- Unaccompanied minors may never be locked up, even if their age is in the process of being determined. They shall not be deprived of any liberties and must be taken care of within a community centre suited to their age and which offers individual and global support.
- A clear legal framework: the freedom of the asylum seeker is the rule; any exception must be strictly defined by law. Rightful transposition and implementation of the reception conditions shall pay particular attention to the definition of the particular types of vulnerability. We must put together an effective system aimed to identify vulnerable people who do not seek asylum.
- Improvement of the legal aid/assistance in closed centres: We support a lasting refinancing of the legal aid/assistance and oppose with force each attempt to dismantle it.
- Generalization of first instance legal assistance: There is a need for a legal framework aiming at systematising first instance legal advice in closed centres and securing lasting financing for the latter. Such framework should be elaborated in consultation with public authorities, the bar associations and NGOs. Access to such permanent legal assistance for migrants held up at the border and detained at the Caricole centre is an utmost priority. In case of a dispute, the migrant’s access to permanent legal counselling cannot depend on the social services of the closed centre for the latter depend on the Belgian Aliens Office. Lawyers must have access to the integral administrative file.
- Second-line legal aid/assistance: The Aliens Office shall nominate a lawyer and notify of the decisions of the asylum authorities and the courts with the shortest delay possible. Sufficient time and the required structures shall be foreseen for detainees to meet with his lawyer with respect to confidentiality. There must be places for consultation between the hearings and visiting NGOs. We must create a pool of determined and competent lawyers for NGOs to work in close collaboration with, e.g. in the framework of the legal aid financing. We need to strengthen the requirements of the initial and continuous training of lawyers qualifies to provide legal aid in closed centre. Likewise, we need to put into place an effective system of control by the bar associations. In the case of any change to the detention or residency application procedures, a detailed record must be written and circulated within the network of qualified lawyers practising in closed centres.
- Quality of services: Together with the Order of the Flemish Bars and
Lawyers, a Code of Good Practices should be drawn up regarding legal aid services in
detention centres. The Bars must carry out effective checks on the quality of the services rendered and enlarge the range of disciplinary actions foreseen in the penal code.
- The follow-up of a pro-deo (free of charge) lawyer: The detainee has the right to ask for his/her assigned lawyer to be replaced as quickly as possible, and, if necessary, within very short delays.
- The relations between the lawyers and NGO visitors: A clear code of ethics needs to be established for the intervention of NGO visitors in closed centres, and for including them in the overall assessment of the quality of the legal aid provided therein.
- Providing information: Detainees shall be informed about their flight at least 48 hours in advance, so that they may either prepare thoroughly their return or lodge an appeal, if they deem it necessary and sensible. Detainees shall never be informed about their flight at night. They must be advised on the consequences of refusing the first flight, so as to be able to choose in full awareness between the first and the second flight.
- Supervision: An independent body should implement regular, independent, efficient and unannounced controls on the expulsion of foreigners. That body should receive the necessary financial means in order to carry out such a mission. If the A.I.G. (General Inspection) would remain the competent authority in this regard, it is of utmost importance for its personnel to not only consist of seconded police officials. Evaluation reports of the A.I.G. should be largely distributed. When an expulsion with police escort is taking place, this can only happen in the presence of a Belgian police official.
- The return: Belgium should closely monitor the way that the foreigner is received by the authorities of the return country. There needs to be full guarantee that those expelled will not be molested or detained. If those guarantees are missing, the expulsion cannot be carried out.
- Secure flights: In view of the many violations of the fundamental Human Rights on secured flights, we demand that these practices be stopped.