Last updated: February 2010

Belgium Detention Profile

Detention Policy

Detention Infrastructure

Facts and Figures

 

In recent years, Belgian immigration policies have been marked by a heavy emphasis on security, and its detention practices have been the subject of much debate at both the national and international levels. Bolstered by a passel of rulings issued by the European Court of Human Rights on Belgian detention practices, civil society groups, human rights watchdogs, and international bodies have criticized the country for a number of controversial practices, including the detention of children, the use of transit zone detention centres, and providing inadequate information to detainees about their legal rights. Simultaneously, Belgian authorities have engaged in a continuous reworking of both detention practices and the legal framework governing detention.

 

 

Detention Policy  

 

The principal norms governing Belgian immigration detention practices are contained in the 1980 Aliens Acts (Loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers). The act provides for the establishment of secure centres situated at the border or within Belgian territory to accommodate persons in an irregular situation. Foreign nationals may be detained when they are either refused entry or request asylum at the border (Aliens Act 1980, Art.74/5, Para.1). Also subject to detention are foreign nationals who are staying in the country irregularly, who pose a threat to public order and security, who present false information regarding their situation to the authorities, whose asylum claims are being processed, or who are awaiting the fulfilment of a removal order and are considered likely to impede the fulfilment of that order (Aliens Act 1980, Art. 74/6). The grounds for issuing a removal order are further elaborated in Article 7 of the Aliens Act.

 

Belgium distinguishes between two types of secure detention sites: “closed centres” (centres fermés) and “border zones” (centres aux frontières). Persons held at border zones are not considered to have officially entered Belgian territory, whereas closed centres accommodate persons who have already entered the territory but are in an irregular situation (Aliens Act 1980, Art. 74/5, Art. 74/6 Para.1; Renders 2010). However, in some cases, persons who have been detained “at the border” and thus considered not to have formally entered the country can be confined in the closed centres when lengthy detention is deemed necessary. “Royal decrees” (Arrêté royal) issued over the last several years have extended the legal framework allowing certain closed centres (in Steenokkerzeel, Bruges, Merksplas, and Vottem) to also be used as border zone detention sites for detaining foreign nationals who have been refused entry (Arrêté royal 1994; Arrêté royal 1998; Arrêté royal 1999).

 

A 2002 royal decree regulates the conditions of detention in the closed centres. However, this decree does not apply to the border zones, called INAD centres (for “inadmissibles”) (Arrêté royal 2002, Art.2, 36). Until 2009, no legal framework was in place to regulate conditions of detention in INAD centres (Renders 2010). In a December 2008 ruling, the Council of State criticized this situation and suspended various articles of the 2002 decree that exempted border zones from its legal framework (EMN 2009, p.37). A royal decree regulating conditions of detention in border zones was adopted in June 2009 (Arrêté royal 2009; Renders 2010).

 

Authority. Key government agencies overseeing implementation of migration and detention policies are the Minister for Migration and Asylum Policy and the Immigration Department (Office des étrangers, OE). The Immigration Department, which functions under the auspices of the Service Public Fédéral (SPF) Intérieur (the equivalent of an interior ministry), is an administrative body charged with the day-to-day administration of most immigration related policies, including the management of detention centres (EMN 2009, p.6). In addition, the government provides access to certain NGOs—including the Belgian Jesuit Refugee Service (JRS) and Coordination et initiatives pour réfugiés et étrangers (CIRE)—which regularly visit detainees, provide them with legal advice,  and report on detention practices (JRS Belgium 2007; AI et al 2009; Renders 2010). NGOs do not have access to the border zone detention facilities (Renders 2010).

 

Length of detention. The maximum period of detention in border zones ranges, depending on the border zone facility, from 48 hours to seven days (Arrète Royal 2009, Art.3). The maximum period of detention in the closed centres is five months. However, this period can be extended to eight months in exceptional cases relating to the maintenance of public order or national security (Aliens Act, Art. 74/5, §3). Persons held in border zones who cannot be removed during the maximum period of time may be transferred to closed centres within Belgian territory, albeit their legal status remains that of an “inadmissible” (Renders 2010). While the EU’s 2008 “Return Directive” allows for longer periods of detention—up to six months—the Minister for Migration and Asylum Policy has declared that Belgium does not intend to extend its maximum length of detention (EMN 2009, p.36). Although the maximum length of detention remains below that stipulated by the EU, irregular non-nationals can be re-detained after being released (AI et al 2009).

 

Asylum seekers. Asylum seekers are, in principle, housed in non-secure reception centres or provided private accommodation. However, this does not rule out the possibility of administrative detention (Sarolea & Dermine 2006, p.9; Aliens Act, Art. 71, 72). In practice, many asylum seekers are detained in secure detention centres while their claims are being processed (Sarolea & Dermine 2006, p.9). Asylum seekers intercepted at Brussels airport, who are not considered to have formally entered Belgian territory, are systematically detained in Transit Centre 127 until their claims have been processed (OE 2004; EMN 2009, pp.20-1; Affaire Mubilanzila Mayeka et Kaniki Mitunga c. Belgique 2006, Para. 42; Renders 2010).

 

Minors. Belgian law provides for the controversial practice of detaining children with their parents in closed detention centres, and for the detention of unaccompanied minors until they are taken into the state’s guardianship service (Sarolea & Dermine 2006, p.77; DEI 2008). These practices have been the subject of two rulings by the European Court of Human Rights (ECHR).

 

ECHR rulings. In 2006, in the “Tabitha case,” the ECHR condemned Belgium for violations of Articles 3 (prohibition of inhuman treatment), 5 (right to liberty and security) and 8 (right to respect for private and family life) of the European Convention on Human Rights (Affaire Mubilanzila Mayeka et Kaniki Mitunga c. Belgique 2006, Para. 58-9,82, 87, 90-1, 103-5, 113-4). The case concerned the decision by Belgian authorities to detain a 5-year-old Congolese girl who was trying to join her mother in Canada. The girl was confined in a closed centre for two months without an appointed guardian and then deported back to her country of origin (Affaire Mubilanzila Mayeka et Kaniki Mitunga c. Belgique 2006, Para.8-37). Since the Tabitha case, Belgian authorities have created a guardianship service to help protect the rights of unaccompanied foreign minors in an irregular situation (CAT 2009).

 

In January 2010, the ECHR made a ruling on a second case involving the detention of children in Belgium. In the case, Muskhadzhiyeva et autres c. Belgique, the ECHR again found Belgium guilty of violating Articles 3 and 5 of the European Convention for confining four Chechen children along with their mother in a deportation centre (Centre 127 bis). The family had been detained at Centre 127 bis with a view of returning them to Poland under the EU’s Dublin II Convention (Affaire Muskhadizhiyeva et autres c. Belgique 2010, Para. 6-23). However, the court ruled that although the mother was lawfully detained, the detention of her children was not lawful. Article 3 (prohibition of inhuman treatment) was violated because the centre was not designed to hold children and because of the poor state of health of the children at the time of their detention. Article 5 (right to liberty and security) was violated based on similar grounds (Affaire Muskhadizhiyeva et autres c. Belgique 2010, Para. 63, 74-5).

 

Recently, Belgian authorities have taken measures to limit the administrative detention of families with children. On 1 October 2008, the Minister for Asylum and Migration Policy created specialised housing (called “maisons de retour”) for families awaiting removal. Families apprehended at the border continued to be detained at Transit Centre 127 bis. However, an October 2009 decision by the minister effectively ended detention of families in this facility. While no legal interdiction on detaining families with children exists, none have been detained in Belgium as of October 2009 (Renders 2010b; EMN 2009, p.20; AI et al  2009; CRER 2009, p.6; OE 2009, p.125). A Belgian NGO representative informed the GDP that specialised short-term detention units were being planned for the detention of families who absconded from the maisons de retour (Renders 2010b).

 

Belgium has also been ruled in violation of the European Convention for its practice of detaining people in border zones. In the 2008 ECHR case Riad and Idiab v. Belgium, the court ruled that Belgium had violated Articles 3 and 5 of the convention for confining two Palestinian nationals in the Brussels airport transit zone after the Brussels Court of First Instance had granted their release from a detention centre. In its judgement, the ECHR highlighted the legal uncertainty caused by being “released” into a transit zone (which effectively amounted to continued detention), as well as the poor conditions in this facility (Affaire Riad et Ibiad c. Belgique 2008, Para. 62-3, 106-111).

 

Additional criticism. Observers have criticized a number of other Belgian detention practices. NGOs working in detention centres have criticised the Immigration Department for detaining vulnerable persons other than minors, including people suffering health and/or mental health problems, victims of human rights abuses, and pregnant women (Aide aux personnes déplacées 2006, p.84).

 

In 2002, the ECHR ruled that Belgian authorities had deliberately neglected to provide detainees adequate information about their rights so as to expedite their removal (Case of Čonka v. Belgium 2002, Para. 46, 55). In 2008, a joint report by Belgian NGOs reported that detainees did not adequately understand their legal situation (Aide aux personnes déplacées et al. 2008, p.5). The UN Committee against Torture cited this situation as contributing to the lack of efficient recourse to appeal procedures in the country (CAT 2009).

 

In 2006, the Council of Europe’s Committee on the Prevention of Torture (CPT) criticised the use of plastic wrist ties by immigration officials charged with accompanying persons being removed, noting that this was against the practices of Belgian police (CPT 2006, p.25). Similarly, a 2009 NGO report cited the use of sedatives during removals, which is not an acceptable restraining method under immigration legislation (AI et al. 2009).

 

Detention Infrastructure    

 

As of February 2010, Belgium operated 10 secure immigration detention sites, including five “closed centres” (in Melsbroek, Steenokkerzeel, Bruges, Merkslpas, and Vottem) and five border zone detention sites (also known as “INAD centres”) (JRS website). The country also maintained a number of non-secure reception centres for asylum seekers. In principle, closed centres are managed by the Immigration Department, INAD (“inadmissible”) centres by the border police, and reception centres by the Federal Agency for Asylum Seekers (Fedasil) and NGOs (Renders 2010; Fedasil website).

 

Despite the existence of 10 secure detention sites in Belgium, the Global Detention Project (GDP) lists only six dedicated facilities in its database—the five closed centres and the INAD centre at Brussels airport, which is coded as a “transit zone” in GDP data. The other four INAD centres, located at regional airports, are not listed because the maximum length of detention at these sites is limited to 48 hours.

 

The total detention capacity at the five closed centres and the Brussels airport INAD centre was 568 as of 2009 (AI et al 2009).

 

The first secure centre for the purpose of the administrative detention of immigrants, Centre de transit 127 (Transit Centre 127), was established in Melsbroek in 1988. Four additional facilities were established during the 1990s, the last of which—the Centre pour illégaux in Vottem—was established in March 1999 (CRER 2009, p.4; OE 2004).

 

Two of the secure centres have mixed bureaucratic regimes. One of the closed centres, Transit Centre 127 in Melsbroek, which is situated on the grounds of Brussels airport, is also classified as a border zone, and is primarily intended for the systematic detention of “inadmissibles” who request asylum at the border. However, the site is managed by the immigration department and is also used to accommodate persons awaiting removal (Renders 2010). Consequently, this detention site is variably classified as either a “closed centre” or a border zone (“transit zone”) centre (JRS website; Renders 2010). Likewise, the INAD centre at Brussels airport is managed by the Immigration Department in close cooperation with the Border Police (Renders 2010).

 

Construction work began in 2009 just outside Brussels airport for a new border zone centre to replace the INAD centre at Brussels airport and Transit Centre 127. The new facility is scheduled to become operational by the end of 2010 (AI et al. 2009; Renders 2010).

 

The other four closed centres—Centre127 bis in Steenokkerzeel, and the Centres pour illégaux in Bruges, Merkslpas, and Vottem—are used primarily to hold unauthorized immigrants awaiting deportation, although they have also been used to hold some asylum seekers (AI et al 2009; OE 2003). Conditions in these four centres are regulated by a 2002 decree, which enumerates the rights, entitlements, and obligations pertaining to persons placed in detention (Arrêté royal fixant le régime et les règles de fonctionnement applicables aux lieux situés sur le territoire belge).

 

While Article 5 of the 2002 decree stresses that administrative detention is intended for the fulfilment of a removal order and not for criminal sanction, conditions at the centres are reportedly prison-like. Two of the detention sites, in Bruges and Merksplas, are former prisons (OE 2004). In 2007, a government delegate of the francophone community noted that living arrangements at the Centre 127 bis in Steenokkerzeel closely resembled prison cells (cited in Affaire Muskhadizhiyeva et autres c. Belgique 2010, Para. 31). In addition, of the 837 staff members employed at the closed centres in 2008, 639, or 76 percent, were security personnel (OE 2009, pp. 24-25). This emphasis on security contrasts sharply with management arrangements in Nordic countries such as Sweden and Finland, which employ  minimal security personnel.

 

Legislation allows for NGOs to provide services such as healthcare or leisure activities in the detention centres, subject to approval by the Immigration Department (Office des étrangers). However, some Belgian NGOs have expressed concern over the strict conditions placed on such activities, including an interdiction on publically reporting information gained through such activities. Reportedly, at least one NGO found the strict limitations placed on organising activities within detention centres unacceptable and, as a result of this, chose not to provide healthcare in the centres (Renders 2010).

 

In a December 2008 ruling, the Administrative Supreme Court found that several provisions in the 2002 decree regulating conditions at detention centres were more restrictive than those of criminal detention facilities, in particular with respect to media access and visitation rights. Furthermore, the court argued that there were insufficient grounds to justify a differential regime for the treatment of undocumented migrants in the transit zone centres (INAD and Melsbroek) and suspended numerous provisions of the 2002 decree relating to these issues (EMN 2009, p.37).

 

Conditions in Belgian detention centres have been criticized in a number of fora. For instance, in its 2010 ruling on the case Affaire Muskhadizhiyeva et autres c. Belgique, the European Court of Human Rights found that the conditions in Centre 127 bis, in which a mother and four young children had been detained, were unsuited to the detention of young children (Affaire Muskhadizhiyeva et autres c. Belgique 2010, Para. 33).

 

The conduct of immigration officials and police officers during removal has also been criticised by both local groups and international bodies. An NGO consortium reported in 2008 that during the previous two years there had been several allegations of mistreatment in detention facilities. These allegations were also highlighted in a report from the Council of Europe’s Committee on the Prevention of Torture following a 2006 visit to the country (Aide aux personnes déplacées et al. 2006, pp.80-2; CPT 2006, p.24).

 

Facts and Figures

 

The number of foreign nationals legally residing in Belgium reached a record high of 971,000 in 2008 (EMN 2009, p.11). The number of pending asylum cases at the end of 2008 was 14,263 (UNHCR 2009). Of the 12,252 asylum applications handled in 2008, some 28 percent were granted some form of protection (EMN 2009, p.11). The number of undocumented immigrants currently residing in Belgium is estimated to be between 150,000 and 200,000 (CRER 2009, p.8). Interception of irregular migrants by the police and Immigration Service has declined somewhat from 22,000 cases in 2004 to 16,070 in 2008. Of these interceptions, the majority (73 percent) were issued removal orders, although only 14 percent were placed in administrative detention (EMN 2009, p.11).

 

The six dedicated migrant detention sites managed by the Immigration Department (five closed centres and the INAD centre at Brussels airport) have a total capacity of 568 (AI et al 2009). A total of 6,902 persons were detained in Belgium in 2008, down somewhat from 9,101 in 2003 (OE 2009, p.122). This amounted to an average of 520 persons being held in detention on any given day in 2008 (OE 2009, p.124). Among those detained in 2008, 270 were minors (OE 2009, p.125). The average length of detention in 2008 was 2.2 days in the INAD centre in Brussels airport; 18.3 in Transit Centre 127; and between 20.3 and 35.8 days in the other secure four centres (OE 2009, p.124).

 

The five main national groups of detainees in 2008 were Romanian, Brazilian, Moroccan, Bulgarian, and Russian (OE 2009, p.125). Romanian and Bulgarian nationals are included in the list as Belgium has delayed the application of the full set of rights to stay in Belgium granted to EU nationals for these two member states until 2012 (EMN 2009, p.11).

 

In 2008, Belgium carried out 4,928 removal orders, down from 6,678 in 2003 (OE 2009, p.123). In total, 71.4 percent of those detained on immigration-related charges were removed from the country that year (OE 2009, p.123).