return migration belgium.pdf

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EEUURROOPPEEAANNMMIIGGRRAATTIIOONNNNEETTWWOORRKKBelgian Contact Point

RESEARCH STUDY III:

Forced and Voluntary Return in Belgium


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The current report is the Belgian contribution to an EU-wide investigation onReturn Policies for non-nationals. This investigation is being undertaken by the

National Contact Points of the European Migration Network (EMN), a networkestablished in order to collect and classify information on migration and asylum,provide access to this information and facilitate the exchange of it. The EMNalso analyses this kind of information and has its own research projects. Theintention is to identify similarities and differences in the approaches of the EUMember States towards illegal immigrants by comparing the studies made on thenational level, to stimulate the exchange of information, to promote goodwill andunderstanding between the Member States and, in this way, to contribute towell-founded and well-informed policy making. More information about the EMNis available on: www.european-migration-network.org

The Belgian Contact Point is financed both by the Belgian Ministry of the Interiorand the European Commission. It can be contacted by e-mail([email protected]), phone 0032 (0)2 206 19 37 or by letter(address: Belgian Contact Point EMN, Dienst Vreemdelingenzaken, WTC II,Antwerpsesteenweg 59 B, 1000 Brussels).

More written contributions from the Belgian Contact Point are, among others,Policy Analysis Reports on Asylum and Migration (2003-2004 and 2004-2005),Statistical Reports on Asylum and Migration (2002 and 2003), a report on

Reception Systems, their Capacities and the Social Situation of AsylumApplicants within the Belgian Reception System, a study on migration of foreignhealth professionals and Research Study II: Illegally Resident Third CountryNationals in Belgium: State approaches towards them and their profile and socialsituation.

Benedikt VulstekeSeptember 2006

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http://www.european-migration-network.org/mailto:[email protected]:[email protected]://www.european-migration-network.org/


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TABLE OF CONTENTS

EXECUTIVE SUMMARY

1. Introduction 8

2. Methodology, definitions and return categories 9

2.1. Methodology 9

2.2. Clarification of concepts and definitions 10

2.3. Categorisation of returnees 143. The political and legal framework 26

3.1. (National) Legal and Political Framework 27

3.2. Influence of European Legislation 40

4. Return Actions 45

4.1. Overview 46

4.2. Voluntary Return: information campaigns, incentives, research 50

4.3. Forced Return 67

4.3.1 Procedures of forced return: ending of illegal stay and removal

order

4.3.2. Detention

4.3.3. Transport and Removal measures

4.3.4. Sustainability of forced return

4.4. Return assistance Return Counselling 99

4.4. Identification and Acquisition of Travel Documents 100

5. Bilateral and Multilateral Co-operation 107

6. Conclusions 114

ANNEXES 119

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EXECUTIVE SUMMARY

Since the Immigration Office is the key body in the system of forced removals,

the Belgian Contact Point, incorporated in the Immigration Office, was well in a

position to carry out this study, as it had easy access to the information.

Moreover, the reports of the Vermeersch Commissions and some scientific

studies (Van Heule 2003; Carlier and Sarola 2005; Foblets and Vanbeselaere

2006) have certainly been useful sources. As for the voluntary return, the

expertise from IOM and Fedasil, 2 partners closely involved in the practice of

implementing the migration policy, has been requested in particular. Thus the

annual reports of IOM on accompanied voluntary returns offer a clear and topical

understanding of the problems.

Belgium is in favour of voluntary returns but observes that this is for the greater

part very difficult in practice. Returning voluntarily is not only preferable from an

humanitarian point of view. This study shows that accompanied voluntary return

is also much cheaper than forced return (average per person; the difference

between the two types of return increases principally in case of a problematic

identification and resistance of the person to be removed, because this person

has to stay in the centre for a longer period of time and possibly an escort has to

be called in).

The duration of detention has been lengthened by successive legislative

modifications during the nineties. Now the initial maximum period of detention isgenerally two months. If certain conditions are fulfilled, the detention may be

prolonged by two additional months by the Minister or the Immigration Office,

and by another month by the Minister (only). This maximum period of detention

of five months may in exceptional cases (for reasons of public order or national

security) be prolonged to eight months.

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The limited number of places available for detention makes it necessary to

choose priorities among the entire group of foreigners without right to stay in

Belgium.

The ECHR Conka judgement of February 2002 has raised questions as to what

level of appeal should still be open to aliens without them being removed (so as

to comply with Article 13 of the European Human Rights Convention). The

current policy is that a person that will effectively be removed from Belgium,

must be given the opportunity to apply for a delay in executing the removal order

to the Council of State (accelerated procedure). During this short period, the

person will not be removed even though, technically, the removal order can beexecuted.

Furthermore, aliens may appeal against their detention to the Council Chamber

of the Court of First Instance (legality check of the detention measure) and,

secondly, to the Indictment Division.

The detention of families and minors has become more and more problematic in

the last years. This part of the removal policy is probably the most criticized by

NGOs and some politicians. The Belgian authorities however see to it that the

detention period of each person to be removed is as short as possible.

The collaboration of individual consular officers of the countries of origin is very

important in the documentation process: it seems that the role of individuals

determines the success of documentation and repatriation much more than

formal agreements.

There has been a changed approach in the execution of forced removals (by the

Federal Police) after the Semira Adamu incident (a forced removal that ended

fatally in 1998): a better selection and training of escort officers, the adoption of

guidelines for forced removals after consultation of all services involved and the

adoption of a gradual removal scheme. Communication is seen now as one of

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the major factors contributing to the success of removals: communication with

the deportee (the importance of accompanying the person already from within

the detention centre and not only at the point of embarkation; possibility to

lessen restraints when cooperating); communication with the aircraft crew whoare unfamiliar with the practices and the antecedents (and hence the use of

restraints) of a particular deportee; communication among the escort officers

prior to, during and after a (failed) removal; communication between the Police

and the Immigration Office.

The Immigration Office also pays more and more attention to communication and

transparency these last years.

The biggest advantage of the use of charters is that the police and the deportees

know that there is an alternative to removal on a regular flight. This may

definitely contribute to accepting the opportunity of voluntary or unaccompanied

forced return. Also the Vermeersch Commission feels that one of the keys to

reducing or even eliminating the use of violence during expulsions is the

availability of other non-violent options and instruments. At the same time, the

costs of special flights, in comparison with the costs of individual forced

removals, appear to be lower than sometimes imagined; for certain European

destinations the break-even point is already reached with three persons to be

removed.

The analysis and recommendations made by the two Vermeersch Commissions

caused that the success of a forced removal is not only measured in terms of the

effective removal but also by the correct use of available means. All the

Vermeersch Commission II recommendations about carrying out expulsions have

been reflected in guidelines for refusing and repatriating non-nationals (with

special attention being paid to families, minors and pregnant women).

Since the end of the nineties in particular the REAB programme of IOM has a

more prominent role in the Belgian return policy (remarkable increase of the

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number of voluntary returns). This however is only partly linked to the growing

migration pressure (mostly asylum applications) in the same period. In recent

years, especially stranded migrants (individuals who never applied for asylum)

took part in the REAB programme (around 50% in 2005). Additional researchabout the interaction between forced and voluntary return to what extent

organizing forced removals puts pressure on certain groups of illegals could be

very useful.

The average age of the REAB returnees is more or less the same as that of the

foreigners confined in closed centres (about 30 years old), whereas the number

of women who require a voluntary return is relatively higher than the number ofwomen confined in the closed centres.

Despite the growing success of the REAB programme, the policymakers have

recently launched a new return programme, also because of the growing

awareness that the number of rejected asylum seekers and other illegals who

feel attracted to the current programme is still relatively small (inquiry has shown

that only 1 in 12 asylum seekers have recourse to the REAB programme). This

programme, intended to really reintegrate aliens in their countries of origin,

started only a few months ago (and therefore, obviously, cannot yet be

evaluated). Its aim is comparable to that of the so-called REAB+ programmes,

which IOM has implemented in Afghanistan, Albania, FYROM, Kosovo, DR

Congo and Angola (unaccompanied minors).

For many asylum seekers, the ultimate motivation for utilizing all possible

procedures in order to obtain a residence status is the feeling or conviction that

return is not possible because of the lack of future perspectives in the countries

of origin. This explains probably in part why most of the REABs take place to

countries whose nationals are not subject to visa obligations or countries near to

the EU. From this it could be deduced that a part of the voluntary returns does

not necessarily consider their migration project as (completely) finished (because

it is quite easy to come back to Belgium, given its proximity, if that should

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appear necessary or appropriate). At the same time, this again emphasizes the

importance of a quick processing of dossiers during the asylum (and

regularization) procedures. For, on the one hand, an asylum seeker will

(understandably) try out all the procedures, and on the other, many complainthat their procedure developments being, in fact, a residence strategy take

far too much time. Precisely this duration of their stay in Belgium, together with

their ties with the Belgian society, is the most important reason why asylum

seekers cannot or do not want to return. In this respect, the recently approved

reform of the Immigration Act should also have positive consequences on the

return policy and the choice is made to examine further the effects of the policy

of integration (for asylum seekers) on the return policy and to explore thepossibilities of linking return migration with development policies.

Also with regard to voluntary return more attention is paid to communication,

through information campaigns, for instance. Another initiative is the production

of a DVD to be shown to all aliens residing in the closed centres, in which the

advantages of returning without offering resistance, whether or not through the

IOM, are explained.

International cooperation, both within and outside the EU (Benelux; Treaty of

Prm), seems also to become ever more important in the field of return.

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1. Introduction

This study aims to contribute to a sensitive and contested issue, which is of

inherent interest to all EU Member States and European institutions. By means of

a systematic comparative method, differences and similarities in state

approaches towards return policies will be identified, which should lead towards

a better understanding, the exchange of more information and a better informed

policymaking process.

The main objectives of this study are:

to reach a better informed understanding of the different state approaches

towards dealing with return in the Member States (Belgium) and in the

European Union at large;

to develop comparable and reliable data on return measures and

programmes;

to provide policy and decision makers with more detailed and up to date

knowledge about return policies especially in view of the European

Directive on common standards and procedures in Member States for

returning illegally residing third country nationals (COM(2005) 391);

to detect research gaps where further research is necessary.

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2. Methodology and clarification of concepts

Summary:

Comparing data from different member states seems particularly difficult fromthe outset, because the definitions vary considerably from one country toanother. By defining the concepts, which in any case already reveal a part of thenational practices, this chapter allows to understand what Belgium means byforced return, the different categories of decisions taken against aliens and theirimplications, the different types of aliens according to the place where they are(at the border or within the territory), to the steps they have taken or did not

take (refused) asylum seekers or purely clandestines) and to the way in whichthey will leave the territory (on their own or accompanied by a police escort).

The voluntary return also needs clarification, because the Belgian concept ofvoluntary return usually excludes the purely voluntary (independent) departures.Actually, this only concerns the assisted voluntary returns within the REABframework of IOM (and some departures organized by the Immigration Office).That is precisely what the NGOs call a consented return, as to emphasize thefact that those who take such a step are, perhaps, not always free to chooseand finally ask for assistance because they are compelled and forced to do so.

This chapter also shows that the age group most involved in returns, voluntaryor forced, are people around thirty. Many of them come from neighbouringcountries of the European Union and even from certain member states.

2.1. Methodology

The key guiding principles include written resources (published or otherwise)

from the Immigration Service and IOM (annual reports, for example), the

"Vermeersch Report (see further on), a few scientific publications and reports

from other public services and NGOs. All of these sources were considered from

a discerning viewpoint.

A personal agreement was reached with outside professionals (Directorate forFederal Police Airport Operations, Fedasil - Federal Agency for the Reception of

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Asylum Applicants). As the Belgian national contact point is established within

the administration responsible for forced removals a great deal of information

was obviously gleaned from colleagues1and in-house reports.

The data statistics (some unpublished) were obtained from the Immigration

Service and IOM.

2.2. Clarification of concepts and definitions:

A third-country citizen is not defined in Belgian law, but this may refer to a non-

national who does not enjoy any privileges and so observes the common rules

provided for by the law and the definition of the Directive2 : any person who is

not a citizen of the Union within the meaning of article 17, paragraph 1, of the

Treaty.

When a foreigner is arrested, the police may keep the person in custody for a

maximum period of 12 hours, so as to carry out an identity check. This involves

a remand in police custody or preventivecustody.

When a third-country citizen's stay is found to be illegal, the administration

issues the individual with an order to leave the territory within a certain period of

time, thereby allowing the person to leave at his/her own initiative. Pursuant to

the return decisionreferred to in the aforementioned Directive, the order to leave

the territory involves an administrative decision (not a judicial one in Belgium)

that a third-country citizen's stay is illegal so the person must return to the

country of origin (voluntarily or otherwise).

1With special thanks to Geert Verbauwhede, Ccile Hubert, Louise NGandu, Katrien Verstraelen and David

Swalus for their contributions and/or remarks.2Proposal for a Directive of the European Parliament and of the Council on common standards and proceduresin Member States for returning illegally staying third-country nationals(COM 2005 (391) final)

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The decision applies to all categories of individuals whose stay is unauthorised

and should leave the country: they may be former asylum applicants whose

application process have reached a conclusion or illegal immigrants (people

without any valid resident papers), non-nationals who have committed offencesor have caused a breach of the peace.

The order to leave the territory is often seconded with an expulsiondecision with

a time limit for the person to leave voluntarily.

Should the individual or individuals fail to leave the territory at their own

initiative within the prescribed period, the administration is entitled to enforcetheir return to their country of origin or a third country where it is sure they will

be admitted.

The term expulsion"covers both repatriations and returns,and has the meaning

specified in the Directive on common standards and procedures in Member

States for returning illegally staying third-country nationals: the application of the

requirement to return, the physical transfer outside the country or forced return.

Applied by the Immigration Service, repatriation is an administrative procedure

for removing aliens illegally staying within the national territory, including

unsuccessful asylum applicants. This measure usually involves holding people in

a closed centre and securing travel documents.

When non-nationals that have been apprehended have the travel documents they

need to be admitted in their country of origin or a third country (or the Belgian

authorities are able to provide them), the police may escort them directly to the

airport to be put on the first flight out. This is referred to as direct repatriation.

The term "refoulement" covers both non-nationals who are not entitled to enter

Belgium because they do not meet the entry conditions (INADs) and

unsuccessful asylum applicants whose applications have been reviewed at the

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border. When these people are stopped at the border they are regarded as never

having entered the country. The return costs involved are chargeable to the

transport operators who brought the individuals to Belgium.

A person may be expelled via a secured flight, where the Immigration Service

arranges for a civil or military aircraft to repatriate foreigners who cannot be

repatriated on a scheduled flight. Cooperation between Member States may be

considered for this kind of flight, as part of what are called joint flight

operations.

In the countdown to their expulsion, aliens may be held in a prison or, more

generally, in a closed centre. This is the "temporary custody" referred to in theDirective. Aliens may be held solely for the time that is required to carry out the

expulsion measure.

Non-nationals living in the Kingdom who have caused a serious breach of the

peace or committed a serious offence against national security may be expelled

on the order of the Kingdom, on the basis of an advisory opinion issued by the

Advisory Board on Aliens. The Council of Ministers has to discuss the expulsion

order to decide if the measure is based on the alien's political activity.

The Minister may also call for a non-national not established in the country to be

refused entry because the individual has caused a breach of the peace or

committed an offence against national security, or failed to meet the residence

conditions laid down by law.

The refusal of entry in common with the expulsionmeans a 10-year prohibition

on re-entry into Belgium.

People who are removed from the territory may also be called "Depos" (deported

persons) according to the IATA codes. When they travel alone without any

escort they are known as Depus(deported person unaccompanied) or when they

travel with a police escort, "Depas" (deported person accompanied). The Belgian

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administration does not use the word "deportation", because it has too many

connotations.

The term "INADs" is used to describe people who may not enter the territoryand do not seek asylum. They are held in a centre located in the transitzone, an

extraterritorial zone, pending a return, at the expense of the airline that flew

them to the country. ANAD applies to a person who is escorted, either by the

airline or the federal police.

Repatriation or taken back to the border: pursuant to the Dublin Convention,

some non-nationals are taken back to the border of the country in charge ofreviewing their asylum request. The repatriation operation is carried out by road

transport in the case of a border country or by plane in all other cases.

Voluntary Return:

Fedasil (Federal Agency for the Reception of Asylum applicants) and IOM take

the view that a voluntary return decision involves a freedom of choice, defined

as the lack of any physical, psychological or material constraint and a carefully-

weighed-up decision implying the availability of adequate, reliable and objective

information.

In charge of voluntary return coordination in Belgium, Fedasil seeks to follow-

through the voluntary return projects by offering return assistance. This is

designed to provide information to prospective asylum applications, people

working at field level, while offering training to reception staff and improving the

guidance to people prior to their return and, above all, their countries of

destination.

An independent return may be described as the act of emigration undertaken by

a non-national without any coercion or any assistance. This type of voluntary

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return will not be considered in this survey because there is almost no (reliable)

information available on this subject in Belgium.

The International Organisation for Migration (IOM) organises the return of non-nationals who so request: this involves an assisted voluntary return or an

accompanied voluntary return. An alien voluntarily taking this course of action is

provided with a premium to cover the initial expenses in the person's country of

origin. The total number of assisted voluntary returns for the whole of 2005 was

3,755 . It should be stressed that a small percentage of the REAB (Return and

Emigration of Asylum applicants from Belgium) returnees leave from a closed

centre: the administration and IOM regard this as an (assisted) voluntary return,but there is some justification for doubting whether this is consistent with the

aforementioned definition.

Fedasil, the agency responsible for the reception of asylum applicants and for

the voluntary return of aliens, proceeded, in July 2006 to launch a

comprehensive program of reintegration schemes (comparable with the VARRP

in the UK). This is co-funded by the European Refugee Fund.

2.3. Categorisation of returnees

Categories of people in Belgium considered liable to return on various grounds

Pursuant to Belgian law, there are several cases where illegal people may be

ordered to leave the territory. For example, The Minister or his representative

may issue orders to leave the territory to aliens who are not authorised nor

admitted to stay more than three months or to become established in the

Kingdom:

1 if they reside in the Kingdom without having the documents required byarticle 2 (undocumented or insufficiently documented people)

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2 if they reside in the Kingdom beyond the prescribed period, normally three

months, or cannot offer evidence that the deadline has been exceeded

(overstayers)

3 if their behaviour is regarded as impairing public order or national security;4 if the Minister, acting on the basis of the opinion of the Advisory Board on

Aliens, regards them as compromising the international relations of Belgium or a

State that is a member of an international agreement, binding Belgium, on the

crossing of external borders;

5 if they are reported for non-entry purposes, in keeping with the Schengen

Agreement;

6 if they do not have sufficient means of subsistence for the planned length ofstay and for the return to the country of origin or the transit to a third country

when their entry is guaranteed, and are not able to acquire these means through

legal channels;

7 if they are suffering from an illness that may endanger public health or a

disease and disability that could endanger public health or a disease and

disability that could impair public order or public safety (drug addiction, for

example);

8 if they pursue a professional activity on an independent or supervised basis

without being authorised to do so (moonlighters);

9 if, pursuant to international conventions or agreements binding Belgium, the

authorities in the contracting states make the illegal people available to the

Belgian authorities with a view to their expulsion from these states;

10 if, pursuant to international conventions or agreements binding Belgium, the

Belgian authorities have to make the illegal people available to the authorities in

the contracting states;

11 if they were refused or removed from the Kingdom less than 10 years ago

when the measure has not been suspended or deferred.

Illegal residents: third-country citizens who fail to meet or who no longer meet

the conditions for being present or staying in the Kingdom.

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Voluntary return of (retired) legal migrants is a term that may be applied to

people who voluntarily decide to return to their countries of origin (or

elsewhere), when they have reached retirement age. This category will not be

considered in this survey.

Dublin Regulation Returnees: when Belgium is not responsible for reviewing a

request, the Minister or his representative approach the responsible State to take

charge or retake charge of the asylum applicants subject to the conditions

provided for by the international agreements binding Belgium. When asylum

applicants have to be transferred to the responsible State, the Minister or his

representative may refuse to allow them to enter or stay in the Kingdom andrequire them to present themselves to the relevant authorities in this State

before a certain date.

Failed asylum applicants: once an asylum request has been rejected by the

Permanent Appeal Commission for Refugees -the final appeal body- or by the

Commissioner General for Refugees and Stateless Persons and no appeal has

been made by the alien within the legal time limit, the residence document is

withdrawn and the administration takes a decision to issue an order to leave the

territory, justified by the relevant party remaining beyond the time limit decided

upon. Should the process end at the application admissibility stage, a negative

decision involves an order to leave that becomes enforceable if it is issued by the

Commissioner General for Refugees and Stateless Persons or if it is issued by the

Immigration Service and no emergency appeal is made against the decision.

Lapse of residence permit: in the event of the documents required being

unavailable, the foreigner may be ordered to leave the territory (return decision).

The status of a person resident in the country on a discretionary basis does not

exist in Belgium. However, in fact it has to be acknowledged that some

categories of people may be able to stay in the country without being disturbed

even though they are not legally staying there. These may be people staying

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illegally but have made a request to have their stay legalised, people who cannot

be repatriated to their countries or origin, who made an asylum request several

years ago and are still waiting for a decision,

These borderline cases are unable to enjoy all the benefits involved in a legal

status but they may get through police checks without too many problems and

in any event they do not risk repatriation. When they are stopped by the police,

these aliens are generally released without any further action being taken or they

may be issued with a further order to leave, subject to a new time limit. This

problem will be solved to some extent as a result of the transposition of the

Directive on alternative protection (Council Directive 2004/83/EC of April 292004).

The situation is different for foreigners who have merely lodged an appeal with

the Council of State to protest against an administrative decision that they

should leave the country. This type of appeal does not have a suspensive effect

and the administration is legally entitled to repatriate a person waiting for a

ruling by the Council of State. This state of affairs has come under heavy fire

from NGOs, which are demanding that any appeal against an expulsion measure,

referring to inhumane and degrading treatment should be automatically

suspensive and calling for a return follow-up process to be arranged for these

cases.

Finally, if the Commissioner General for Refugees and Stateless People confirms

a decision of inadmissibility of an application, he has to give his verdict in the

decision about the forced return to the border of the country the person has fled

from and where, following the application, the person's life, physical integrity or

liberty are threatened. The CGRS can add an opinion about non-repatriation

on his own initiative, on the basis of internal criteria. So it is only a

recommendation, that does not bind the Immigration Office.

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Demographic characteristics of returnees: Origin and nationality of returnees

On the basis solely of repatriations organised by the administration, directly, withor without escort the total number for 2005 was 6,5653.

Figures for forced repatriations undertaken by the Immigration Office in 2005

show that the 10 leading destinations are almost all countries from the European

mainland. Brazil appears in the figures for forced returns and also appears in the

statistics for the destinations of voluntary returns arranged by IOM.

Romania 1364

Bulgaria 1180

Poland 872

Brazil 482

Morocco 275

Slovakia 264

Albania 236

Turkey 225

Russia 169

Serbia and Montenegro106

Lithuania 85

Nigeria 74Ukraine 71

China 60

Ecuador 60

Moldavia 55

DR Congo 53

Armenia 46

3Immigration Office figures

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Guinea 45

Pakistan 43

1,403 returns have to be added to these figures. 216 of these were asylumapplicants whose requests at the border were refused, while 571 cases involved

asylum applicants being taken back to the border where Belgium was not the

State responsible for examining the request, pursuant to the Dublin II Regulation.

A total of 12,280 people left the Belgian territory in 2005, including 3,741 who

left voluntarily via the IOM REAB programme (280 from closed centres).

The various items in annex 3 include statistics for the activities of the closed

centres. It should be stressed that the figures for assisted voluntary repatriations

from closed centres rose more than threefold between 2003 and 2005: from 88

to 294 cases, owing to the proactive policy the authorities adopted to facilitate

this type of departure.

Nobody was repatriated to an unknown destination in 2005 but seven people of

unknown nationality left the territory in 2005, two of whom were unescorted

and five were directly repatriated without any prior custody.

In the case of return assistance, as pointed out earlier, IOM plays a central role

via the REAB programmes and the so-called REAB+ projects. As well as

offering an up-to-date review of the accompanied voluntary return issue, their

annual report for 2005 provides further details about the characteristics of

returnees.

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A review of the key REAB trends and analysis 2005:

Asylum applications and Voluntary Returns:

In the year 2005, IOM noticed a small increase in the number of asylum requests

in Belgium. It is the first increase since the introduction of the new asylum

measures in 2001. Considering the REAB figures of the year 2004 and 2005,

there was an increase of the voluntary returns of 15%. The difference between

the trends of the asylum applications and the voluntary returns can be explained

by the fact that the voluntary return option is mainly used when migrants haveexplored all possibilities of remaining in Belgium. The vast majority of migrants

benefiting from the REAB programme are indeed illegally staying in Belgium:

either as rejected asylum-applicants, or as stranded migrants. The length of stay

is longer for the ones who entered the asylum procedure in Belgium (22 months)

than for the second group (19.4 months). If the time of the asylum procedure is

subtracted, it can be assumed, according to IOM, that both groups are deciding

to return after approximately the same time spent illegally residing in Belgium.

Duration of Stay in Belgium before making an appeal to the REAB Programme:

2000 2001 2002 2003 2004 2005

12 months 11,7 months 13,5 months 18,9 months 24 months 20,8 months

(Source: IOM REAB Report 2005)

There is an interdependence between the shorter asylum processing time and the

fast-track departure with REAB. This interdependence is valid and logical for the

group of people who can easily be informed about the REAB option: asylum

applicants residing in the reception facilities.

However, even though a larger number of migrants are informed about thepossibility of the voluntary return option while residing in a reception centre (the

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main location where migrants can be reached and where the concept of

voluntary return can notified to them), NGOs and Cities continue to provide the

largest number of REAB beneficiaries (66%).

An additional element to be considered is the interaction between forced and

voluntary return. On the one hand, it is undoubtful that forced return has an

impact on individuals and migrant communities: it is reasonable to think that

some people, due to the fact that forced returns are being organised at internal

level, might think about joining the REAB and opt for a safe and dignified return

rather than wait for the expulsion.

On the other hand, a more general analysis of the data, bearing in mind that the

majority of REAB candidates are referred to IOM by NGOs, shows that external

factors, such as forced returns, do not appear to play a prominent role in the

decision-making process of the REAB returnees, according to IOM For example,

in 2005, the number of voluntary returns increased although the number of

forced returns decreased.

Asylum Requests, Forced Returns and Assisted Voluntary Returns

(2000-2005)

0

5000

10000

15000

20000

25000

30000

35000

40000

45000

2000 2001 2002 2003 2004 2005

Asylum ApplicationsForced Returns

Ass is ted voluntary Returns

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(IOM REAB report 2005)

The following table shows that the number of stranded migrants (non-asylum)

is now the main category of voluntary return within the REAB. In 2005, thenumber of stranded migrants who have never undertaken the asylum procedure

accounted for 50% of all REAB returns. A slight increase in the number of

applications submitted by rejected asylum applicants was also noted.

Categories REAB Returnees 2000-2005

0

500

1000

1500

2000

2500

3000

3500

4000

2001 2002 2003 2004 2005

Asylum Request Stopped

Rejected Asylum Seekers

Non-Asylum ("stranded")

Totals REAB

(IOM REAB report 2005)

The majority of REAB candidates live in Brussels: 42.4% of all REAB returns in

2005. Antwerp accounts for the second largest group. This can be logically

explained: illegal immigrants usually live in the large cities where jobs on the

black market and Diaspora connections are more likely to be found.

The profile of the 2005 REAB returnee is, according to IOM, a male, non-asylum

applicant originating from Brazil, 28.5 years old and residing in Brussels for

approximately 14 months before applying for the REAB. This profile is quite

similar when compared to the previous year: the REAB-returnees are staying an

average of 5 months longer in Belgium and are significantly younger (28.5 years

old instead of 33). The other elements (place of residence; citizenship) remained

the same. An exception to the general gender trend (58% of males) is

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represented by Ecuador: 75% of all returns to Ecuador were accounted for by

women.

Age breakdown by Family Status:

While the majority of the 2173 males returning in 2005 were returning as single

people (63%) the majority of women (61%) were usually returning as part of a

family group. 84% of the total was in the 18-50 age category.

ountries of destination:

urope: IOM noticed an increase in the number of returns to some traditional

atin America: starting in 2001, the trend towards an increasing number of

Age breakdown Fami ly Single Grand total


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Africa: Voluntary returns to Africa have steadily increased since 2001. This is

sia Middle East Caucasus: The number of voluntary returns to the Asian

partly due to the specific reintegration programs implemented by IOM during the

course of 2004 and 2005 (for example Angola and DR Congo: support for the

reception of orphans and the reintegration of minors voluntarily leaving Belgium).

A

continent remained quite stable in 2005. A remarkable increase is the one for

Mongolia (+59%); a country which is, according to IOM, likely to become the

main Asia destination in the near future.

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Top 20 destination countries REAB 2005 (Source: IOM)

0

100

200

300

400

500

600

700800

Brazil

Slovakia

Ukraine

RussianF

ederation

Arme

nia

Bulga

ria

Mong

olia

Kosovo

(Yug

oslavia)

Ecuado

r

Moldavia

Georgia Ira

n

Alba

nia

CzechRe

publi

c

Romania

DRCon

go

Bosnia-

Herze

govin

a

Cana

da

Macedo

nia

Alge

ria

REAB applications and non-departures:

Non-departures in 2005 accounted for 812 persons representing 17.8% of all

REAB applicants. The presence of migrants registering and deciding not to leave

is a further indication of the voluntary character of the REAB program. One of

the main reasons for people not leaving in 2005 was migrants who decided not

to go to the airport on the day of their departure (22%). 12% did not leave

because they could not obtain valid travel documents.

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3. The political and legal framework

Summary

The (forced) removal of foreigners from the territory is a very complex questionwhich stands at the junction of different national and international regulationsamong which three domains are particularly important: the regulationsconcerning foreigners, the regulations concerning the police services and thoseconcerning air and sea traffic.

The Semira Adamu case, a young Nigerian woman who died in 1998 as a

consequence of violent treatment during a forced return, has become thecornerstone on which the authorities rely for developing a removal system that ismore humane and efficient.

The successive Ministers of the Interior since then have established twocommissions, called the Vermeersch Commissions (after the professor whopresided them), whose task it was to evaluate the instructions concerningremovals (the first Commission) and to adopt guidelines as to ensure that theremovals are being carried out in a more humane manner in the eyes of theremoved persons, while assuring at the same time the safety of the police

officers and specifying their judicial situation (for the second Commission). In itsfinal report, the second Commission formulates no less than 34recommendations for the attention of the different participants in the removalprocedure.

Various European texts allow common initiatives with regard to the removal ofaliens. The practice shows however that Belgium has not waited with organizingcommon flights with the European partners. New initiatives are also launched inan extra-European context, in particular by the signing of the Treaty of Prm in2005 by 7 member states. This Treaty is aimed at improving the cross-border

cooperation and (in its Article 23) at facilitating the joint organizing of theremoval of individuals who reside illegally within the territory of the signatoryStates.

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3.1. (National) Legal and Political Frameworks

The public debate about repatriation is obviously bound up with the one about

the migration issue in general. The public debate sometimes reachescrescendos in the light of accidents or unfortunate incidents, with examples

being the cases of Smira Adamu and Tabita:

In many ways, the Semira Adamu case was a run-up to the dramatic crowning

moment in the repatriation debate. The case relates to the story of a young

Nigerian, who died during an attempt to remove her forcibly from the territory in

September 1998. She was taken on board an aircraft in the company of police

officers, who pushed a cushion on her face. She lost consciousness and died in

Brussels a few hours later. This case led to the decision to set up the

Vermeersch Commission.

Five-year old Tabita arrived from the Congo without a visa, in the company of

her uncle, a Dutch national, who untruthfully claimed she was his daughter. The

idea was for her to join her mother, who enjoyed refugee status in Canada.

Tabita was repatriated to Congo in October 2002 after being held in a closed

centre. The case attracted a great deal of media attention, throwing a spotlight

on the policies and decisions of the authorities. These incidents resulted in a

reform of the procedures involved in cases of forced repatriation.

The Brussels Court of First Instance handed down a judgement on 12 December

2003, in a bid to decide where the blame lay for the death of Semira Adamu. In

the wake of the feelings of disquiet about the judgement, indicting the members

of the police force involved in expulsion operations starting from Belgium's

national airport in Zaventem, the Home Affairs Minister set up a "Commission to

take charge of assessing the types of instructions provided in expulsion matters4,

4Building blocks for a humane and effective expulsion policy, final report by the Vermeersch Commission II,presented to the Home Affairs Minister on 31 January 2005

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the so-called Vermeersch Commission, after the name of the professor chairing

the proceedings.

It was in fact the second such Commission. The first one issued a reportapparently showing that instructions about removing failed asylum applicants

were seriously flawed or were misunderstood owing to a lack of training. The

key task of the first Commission was to reword the instructions so as to prevent

any further accidents and, more generally, to ensure removal operations were

undertaken humanely with due regard to human rights and all the international

provisions applied in this area.

The second Commission was tasked with making a further review of the

expulsion issues, while trying to recast the instructions so as to ensure humane

procedures were applied when expelling people and police officers could enjoy

legal security as a result of their legal position being clearly spelled out. The

Home Affairs Minister instructed his department to apply the Commission

recommendations as soon as the conclusions were approved.

The Commission's report featured the outcome of an analysis, listing the main

regulatory provisions that could have an impact on the expulsion policy.

Consideration will be given to the comprehensive study against the background

of this report.

The Commission carried out its activities between January and December 2004.

When setting up the Commission, the Minister urged the members to proceed at a

decent speed because the police trade unions were loath to see their members

undertake any more forced repatriations after the judgement of the criminal court.

In line with its task, the Commission deployed various methods. First of all, it

examined a whole host of documents, particularly international and domestic

regulations applicable to the removals issue, reports by non-governmental

organisations, and the scientific literature. A few members of the Commission,

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including the president, actually took part in a number of removal operations,

such as procedures involving the people in question being transferred to the local

authorities. Against the background of its debates, the Commission called upon

one or two public services to provide an analysis of various dimensions of theremoval policy and asylum policy in general (see annex).

The Commission also sponsored hearings with non-governmental organisations

keeping track of the removal issue. These were primarily aimed at reviewing the

mid-term report and taking note of recommendations in the countdown to the

final report. The final report comprised three key sections. The first introductory

section outlined the general framework for the Commission's activities. Itcovered the Commission's ethical criteria, a general review of the removal policy,

and a consideration of a few internal texts focusing on the removal of foreigners.

Section II featured a brief review of the intricate legal framework applicable to

removals, while seeking to illustrate the removal policy on the basis of a few

figures. The third section covered the Commission's recommendations. These are

premised on available texts, policies and debates but are specifically focused on

broadening traditional conceptual frameworks and thus helping to apply innovative

ideas to the removal policy.

The Commission's final report confined itself to providing the "building blocks",

the main themes for a removal policy in our country. The building blocks were

based on two key themes: a) the need for a humane policy, focused on

fundamental rights and the dignity of all the parties involved, and b) the

relevance of an effective policy based on achieving specific targets. The

Commission specifically eschewed any idea of making a comprehensive,

scientific analysis of the removals and also steered clear of making a

comparative study of the approaches adopted in other countries.

Apart from three academics with expert knowledge in ethical, legal and medical

fields, the Commission I primarily consisted of people representing the enforcers

of the removal policy. In the wake of the Commission I's final report the

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situation has changed in various ways: recently arrived asylum applicants now

receive a final answer to their asylum requests at a much earlier date (LIFO or

last in first out principle)). This has not fully solved the problem of people

whose cases are beset by delays (delay + to what extent is an order to leavethe territory after a negative LIFO procedure actually followed up).

The publication of the Commission (I) report was met with heavy criticism from

various quarters, implying that the Commission members had focused solely on the

implementation procedures, without realising that the policy itself was basically

unjustified. The second Commission was therefore anxious to probe the general

sides of the immigration policy in our country and to see how the removal policy fitsinto this context.

The second Commission continues to subscribe to view that the removal policy is a

key component of the Belgian State's migration policy, based on the legislative

proceedings of the parliament and decisions taken by the executive pursuant to this

legislation. The Commission takes the view that all the parties taking part in the

federal government since the approval of the Law of 15 December 1980 bear full

responsibility for this policy in all its dimensions, as none of the parties have

challenged the basic options of this legislation and the implementing decisions. The

Commission stressed the need to take note of this point because as a result of

various incidents some of the parties (even MPs) are inclined to be seriously critical

about individuals and authorities responsible for putting the decisions of the

parliament and government into practice. Towards this end, the Commission had

no designs on confirming what went wrong but was anxious to draw attention to

the fact that those challenging the very principle of removals, including forced

removals, should address themselves to the parliament and the government, rather

than those enforcing the policy.

Another issue was raised about the policy of detentions in closed centres. The

centres were set up because according to the law people residing illegally in

Belgium (undocumented migrants and failed asylum applicants) must be removed.

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However, quite a bit of time is needed to secure the exit documents from the

relevant authorities but there is no point to the proceedings if the person in question

disappears again as soon as the documents have been obtained. Owing to the

special nature of this 'illegality", there is no judicial procedure prior to this detentionand it does not occur in prison. However, there are cases where the Judges'

Council Chamber issues an order for people to be released from closed centres,

while the return journey has already been organised, which is an anomaly, according

to the Vermeersch Commission: as soon as the travel documents of the rejected

asylum applicants who have exhausted their right to appeal are available, the centre

is not closedfor them and is not comparable with a prison: the door to the outside

world is open. The Commission has called for legislative proceedings to beundertaken so as to remove this anomaly.

The staff employed in open centres (reception centres) are also faced with

problems. The people they attend to cherish the (somewhat subjective) hope that

their asylum requests will be granted (although this does not happen often). The

staff strive to establish a good human relationship with their guests and prepare

them for a future stay in Belgium. When people are denied asylum, the staff find it

hard to be disloyal to this relationship but they are a link in the chain of institutions

responsible for enforcing Belgium's immigration policy and in the case of a failed

asylum request the enforcement process involves removal. It is easy to understand

that the staff find it hard actively to participate in the process but if they were to

thwart the enforcement of a decision this definitely could not be tolerated (a

comparable attitude may be adopted towards the staff of social welfare agencies).

As far as the Commission is concerned, account has to be taken of the fact that

people who are ordered to leave the country and have a laissez passer to allow

them to enter another country are guilty of breaking Belgian law if they resist those

responsible for the removal. If people cannot be removed solely because they offer

resistance, this should be considered as the basis for a detention that continues

until the person in question is removed. The principle of a maximum period of

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detention that fails to factor in these illegal activities would encourage such

activities as an unwelcome side-effect.

The Commission finds the term voluntary departure is an inappropriate one: peopledo not generally leave of their own free will" but because their request for

asylum/to stay has been denied. Incentives have to be provided to persuade the

people in question to accept such a decision so that they leave of their own

accord' or 'without any resistance'.

After having focused on the removal issue and subsequent to a review of the

recommendation of a number of international authorities, the Commissionformulated its own recommendations (see below; list in Annex). These broadly-

based recommendations were broken down into six themes:

Strengthening the legal protection (of the police services and the people being

removed); Preventing the use of violence (once again by police officers and the

people being removed); Communication between the relevant services; offering

better protection for special categories of people (such as pregnant women and

accompanied minors); The broader asylum and migration chain (speeding up the

asylum procedure, for example); and monitoring the recommendations themselves

(by setting up a standing committee on removal policy ).

Legal Framework5

Removing non-nationals from the territory is a most intricate affair, one that is

located at the crossroads of the various regulatory processes. The following three

areas are of particular relevance:

1. the regulatory process for aliens,

2. the regulatory process for the police force

3. and the regulatory process for aviation and shipping.

5Vermeersch Commission's Final Report II (2005), p34

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The key legal instruments are listed for each area, both at domestic and

international level.

1. Regulatory process for foreigners:

The key domestic instruments are:

Law of 15 December 1980 concerning access to the territory, residence, the

establishment and the removal of aliens (Immigration Act);

Royal Decree of 8 October 1981 concerning access to the territory,

residence, the establishment and removal of aliens;

Programme Law of 24 December 2002 Title VIII Chapter 6 concerning

the guardianship of unaccompanied non-national minors;

Royal Decree of 9 July 2000 establishing special procedural rules for disputes

about decisions concerning access to the territory, residence, establishment

and the removal of aliens;

Royal Decree of 2 August 2002 establishing the system and the operational

rules, applicable at locations within the Belgian territory, administered by the

Federal Immigration Service, where a non-national is confined, ordered to be

held at the government's pleasure or detained;

Royal Decree of 22 December 2003 implementing the Programme Law of 24

December 2002 Title VIII Chapter 6 concerning the guardianship of

unaccompanied non-national minors;

Ministerial guidelines concerning the expulsion and repatriation of foreigners,

1999.

Several alien-related provisions are covered by the European legal framework,

where a distinction is made between the European Union and the Council of

Europe:

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Treaty of 25 March 1957 establishing the European Community (as amended

by the Treaty of Amsterdam of 2 October 1997, amending the Treaty on

European Union and the Treaties establishing the European Communities);

Dublin Convention of 15 June 1990, determining the State responsible forexamining applications for asylum lodged in one of the Member States of the

European Union ;

Convention of 19 June 1990 implementing the Schengen Agreement of 14

June 1985 between the governments of the States of the Benelux Economic

Union, the Federal Republic of Germany and the French Republic on the

gradual abolition of checks at their common borders;

Council Regulation of 11 December 2000 (2725/2000/EC) concerning the

establishment of 'Eurodac' for the comparison of fingerprints for the effective

application of the Dublin Convention;

Council Regulation of 28 February 407/2002/EC laying down certain rules to

implement Council Regulation 2725/2000/EC concerning the establishment of

Eurodac for the comparison of fingerprints for the effective application of

the Dublin Convention;

Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the

criteria and mechanisms for determining the Member State responsible for

examining an asylum application lodged in one of the Member States by a

third-country national(Dublin II);

Council Directive 2003/110/EC of 25 November 2003 on assistance in cases

of transit for the purposes of removal by air;

Council Directive 2004/83/EC of 29 April 2004 concerning protection for

asylum applicants not covered by the Geneva Convention;

Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint

flights for removals from the territory of two or more Member States;

Council recommendation of 22 December 1995 on concerted action and

cooperation in carrying out expulsion measures;

Council and Commission Action Plan of 3 December 1998 on how best to

implement the provisions of the Treaty of Amsterdam on the creation of anarea of freedom, security and justice.

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Recommendation by the Council of Europe's Commissioner for Human Rights,

19 September 2001, on aliens' access to and removal from the territory;

Recommendation 1547 (2002) by the Council of Europe's Parliamentary

Assembly on expulsion procedures in conformity with human rights andenforced with respect for safety and dignity;.

The key international instrument is :

Geneva Convention (28 July 1951) relating to the status of refugees (Law of 16

May 1953).

2. Regulatory process for coercion by the police force:

The key domestic instruments are:

Belgian Penal Code, Book II, Title VIII;

Law of 8 August 1992 on police officers;

Law of 7 December 1998 on the organisation of a two-tier integrated police

force,

Law of 13 May 1999 establishing the disciplinary status of members of the

police force;

Law of 9 June 1999 approving the international Convention against Torture and

other Cruel, Inhuman or Degrading Treatment or Punishment;6

Law of 14 June 2002 on the approval by Belgian law of the international

Convention against Torture and other Cruel, Inhuman or Degrading Treatment

or Punishment;7

Ministerial Decree of 11 April 2000 governing the conditions for the carriage

of passengers with special safety risks on board commercial aircraft;

6Towards this end, Belgium has decided that the Convention shall be fully effective, which means in particular that Belgiummust ensure that all forms of torture, attempted torture, complicity and participation in torture is punishable pursuant to its

own criminal law.7Pursuant to this Law Book II, Title VIII, Chapter I of the Penal Code, is supplemented with a Section V Torture, inhumantreatment and degrading treatment (articles 417 a to 417 d).

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Draft Royal Decree establishing a code of conduct for the police force

The Council of Europe's key legal instruments are:

European Convention of 4 November 1950 for the Protection of Human Rights

and Fundamental Freedoms Convention for the Protection of Human Rights

and Fundamental Freedoms, including the jurisdiction of the European Court of

Human Rights;8

European Convention of 26 November 1987 for the Prevention of Torture and

Inhuman or Degrading Treatment (Law of 7 June 1991), including the reports

by the European Committee for the Prevention of Torture (ECPY).9

Recommendation by the Committee of Ministers of the Council of Europe of 19

September 2001 concerning the European Code of Police Ethics.

Primarily worth taking note of at international level are:

The International Convention of 19 December 1966 on Civil and Political

Rights (Law of 15 May 1981), including the reports and jurisdiction of the UN

Human Rights Committee;10

The International Convention of 10 December 1984 against Torture and other

Cruel, Inhuman or Degrading Treatment or Punishment (Law of 9 June 1999),

8 See judgement in the case onka versus Belgium (5 February 2002) for Belgium's sole

conviction so far concerning cases of removal.9 See the three reports concerning Belgium, particularly the third report of 2002: EuropeanCommittee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT),Report to the Government of Belgium concerning the visit the European Committee for the

Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) paid to Belgium

from 25 November to 7 December 2001, Strasbourg, Council of Europe, Strasbourg, 17 October2002, CPT / Inf (2002) 25. The ECPT's 13th general report of 2003 is expressly focused on thepractice of the removal of aliens by countries that are members of the Convention. See: EuropeanCommittee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT),13th General Report on the activities of the CPT over the period from 1 January 2002 to 31

July 2003, Strasbourg, Council of Europe, 10 September 2003, CPT / Inf (2003) 35.10In the light of the Belgian report (2003) under the UN Covenant on Civil and Political Rights the

Human Rights Committee has expressed several concerns about the removal of aliens: HumanRights Committee, Final Observations, adopted on 21 and 24 July 2004, CCPR/C/SR.2210 and2214.

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including the reports and jurisdiction by the UN Committee against Torture.11

3. Regulatory process for the safety of aviation and shipping

The key domestic legal instruments are:12

Law of 27 June 1937 concerning the regulation of the aviation sector and

the Royal Decree of 15 March 1954 implementing the Law on the regulation

of the aviation sector;

Royal Decree of 3 May 1991 for the protection of the civil aviation sector;

Ministerial Decree of 11 April 2000 governing the conditions for the carriage

of passengers with special safety risks on board commercial aircraft.

The key European instruments are:

Regulation (EC) No 2320/2002 of the European Parliament and of the Council

of 16 December 2002 establishing common rules in the field of civil aviation ;

Commission Regulation (EC) No 622/2003 laying down measures for the

implementation of the common basic standards on aviation security ;

Council Regulation (EC) 8566/03 of 8 May 2003 concerning the improvement

of security for shipping and harbour facilities.

The key international instruments are:

Convention on International Civil Aviation, signed at Chicago, on 7 December.

1944 (Law of 30 April 1947);

Convention on Offences and Certain Other Acts Committed on Board Aircraft,

signed at Tokyo on 14 September 1963 (Law of 15 July 1970);

11 See in particular the decisions and recommendations of the UN Committee against Torture(2003), as a result of the consideration of the first Belgian report under the Convention againstTorture: Committee against Torture, Conclusions and recommendations: Belgium, 27 May 2003,

CAT/C/CR/30/6.12Harbour security is a joint responsibility of the harbour authorities themselves, the Federal Government and the Regions.All inland water matters are the responsibility of the Regions.

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International Convention of 1 November 1974 for the safety of life at sea

(SOLAS Convention) (Law of 10 August 1979 and the Royal Decree of 15

June 2004) and The International Ship and Port Facility Security Code (ISPS

Code).

However, the main regulations for forced return are the Law of 15 December

1980 and the Royal Decree of 8 October 1981.

According to the Immigration Act, detention applies to any person who (see also

point 2.2.):

- Tries to enter Belgium at a point of entry without being in possession of the

required identity and travel documents such a person may be detained in a

location situated in the border area while awaiting a decision to enter Belgium or

awaiting removal (Article 74 of the Immigration Act);

- Stays illegally in Belgium he/she may be detained when his/her removal has

been ordered (Article 7 of the Immigration Act); and

- Has been ordered to leave the country and has failed to do so within the set time

limit (Article 27 of the Immigration Act).

The 1992 Police Act (article 34, paragraph 4) further stipulates that the Police

may also detain persons who cannot prove their claimed identity, for the period

necessary to check their identity, and for a maximum of 12 hours. Under Article

74(7) of the 1980 Immigration Act, the police may detain non-nationals who do

not have the necessary residence or identity documents for a period of 24 hours,

awaiting a decision of the Minister of Interior or the Immigration Service about

their status. When contacted by the Police, the Immigration Office will check

whether the claimant has any legal residence status in Belgium. Those who do

not, may be detained and if possible removed.

With regard to asylum applicants, the following categories can be detained:

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Asylum applicants arriving in Belgium, who apply for asylum at the port of entry,

without being in possession of the required identity or travel documents these

may be detained in a location situated in the border area, while awaiting a

decision to enter Belgium or awaiting removal (Article 74(5) of the ImmigrationAct);

Asylum applicants who have entered Belgium legally, but whose legal permission

to stay has expired, may be detained when their asylum application has been

found inadmissible or not founded (Article 74(5) of the Immigration Act).

Experiences with regard to protest and solidarity movements with regard to

returnees:

Several NGOs are expressing opinions and demonstrating in Belgium against having

closed centres where non-nationals are held prior to their return. Campaigns have

been organised outside the closed centres along with demonstrations to show a

bond of solidarity with the people being held in the centres.

Created in the autumn of 2002 by 20 or so organisations active within the

"National Movement for the Regularisation of Undocumented People and

Refugees"13, the "Asylum and Migration Forum" has put forward proposals for a

more humane asylum and immigration policy. Calling the public authorities to

account and making citizens more aware of asylum and migration issues, the forum

represents over 120 national organisations including the CIR, which recently

published an educational document called "Opening people's eyes about closed

centres for aliens"14. This describes the day-to-day environment of illegal foreigners

living in Belgium, the arrests, repatriations and the experience of living in a closed

centre.

13 Information taken from the site of the (CIRE) Coordination and Initiatives for Refugees and Aliens http://www.cire.irisnet.be/appuis/fam.html14"Opening people's eyes to closed centres for aliens", an educational document the CIR produced as part of

its campaign to raise awareness about the issue of closed centres for aliens, May 2006, 72p. (also available onthe CIRE site or at www.ouvrons-les-yeux.be

39
http://www.cire.irisnet.be/appuis/fam.htmlhttp://www.ouvrons-les-yeux.be/http://www.ouvrons-les-yeux.be/http://www.cire.irisnet.be/appuis/fam.html


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One of the Asylum and Migration Forum's demands expresses its opposition to

closed centres and removals. As these practices are continuing, the Forum is calling

for basic human right guarantees.The demonstrations support groups hold outside the closed centres may involve

only a handful of people chanting slogans while making contact with the residents

via spokespersons but may also attract a larger turn-out and lead to damage,

particularly if they are intended to lend support to residents on a hunger strike.

3.2. Influence of European legislation

Mutual recognition

Directive 2001/40 on the mutual recognition of decisions on the expulsion of third

country nationals has been transposed but is not deployed. There are several

reasons for this:

First of all, Belgium is not necessarily aware of the expulsion decisions decided

upon by the other Member States and when it does know about such decisions, it

would be faster and less complicated to expel a non-national to another Member

State than to a country of origin for which travel documents have to be secured.

Second, it is reported to be quite a daunting task obtaining financial compensation

for repatriating someone rather than sending them to another Member State.

Consequently, the Directive was not applied at all in 2005.

Joint flights

The trend towards organising joint flights between the Member States was

confirmed in 2005, a system that is now governed by the Council Decision

2004/573/EC15. However, it should be stressed that joint flights of this type were

15

Council Decision of 29 April 2004 on the organisation of joint flights for removals from the territory of two ormore Member States, of third-country nationals who are subjects of individual removal orders, Official Journalof the European Union 6-08-2004 (L261/28)

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organised well before the Decision was adopted, which is not a binding one.

Belgium has organised or been involved in a total of nine European flights, all of

which turned out to be smooth operations whose outcomes were welcomed by the

participating countries.

Several new destinations were added to the list in 2005: secured flights were able

to be organised to Belarus (Minsk), Democratic Republic of Congo (Kinshasa) and

Armenia (Erevan).

Belgium has called for the annex to the Council Decision to be made binding when

joint flights are being organised. The annex lists a series of practical rules applicableto each participant in a removal procedure, including the people being removed

themselves.

In the light of the Council Decision of 29 April 2004 and its annex, the Benelux

countries concluded a memorandum of understanding covering joint policies on

security measures to be taken for joint expulsion operations by air transport. Signed

in Rotterdam on 6 July 2004, the memorandum describes the rules applicable to

people being removed, those applicable to escorts during the phase leading up to

the return, taking the people to be removed to the airport and the stay in the

airport, plus the registration, boarding and security check operations before the

plane takes off, the flight procedures, including on-board security, the applicable

rules during any transit phase and rules that have to be applied on arrival.

Outside the European framework, seven Member States agreed, on 27 May 2005,

in Prm, to sign a Treaty on enhancing cross-border cooperation, particularly with a

view to combating terrorism, cross-border crime and illegal immigration. The group

comprises the Benelux countries, France, Austria, Germany and Spain (see point 5:

Bilateral and Multilateral Cooperation). Cooperation between the Member States is

therefore taking shape but not necessarily in the context of the emerging European

legislation.

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Belgium is favourable with the organization of joint, but geographically limited

flights, possibly with the countries which signed the Treaty of Prm. It seems

indeed not feasible to organise a flight to 4 or 5 MS.

Prior to the latest EU enlargement, in 2004, most of the repatriations involved

citizens of the new Member States. As shown in the aforementioned table, Poland

is still in the top 10 for the number of repatriations ordered by Belgium, primarily for

employment law-related infringements (it should be pointed out that Belgium has

not yet lifted the work permit moratorium so citizens from the new Member States

working in Belgium are still required to have a work permit).

After the introduction of the Convention applying the Schengen Agreement Belgium

has invariably issued expulsion decisions for the entire Schengen area, which is not

apparently the case for all the Member States. What happens in practice is that a

person receiving an order to leave Belgian territory may not enter any other

Schengen country.

Assisted voluntary returns via the REAB programme are still possible for citizens of

the new EU members. The only difference is that they are no longer entitled to

receive the standard re-installation grant of EUR 250.

Conka judgement

In a judgement handed down on 5 February2002 , the European Court of Human

Rights indicted the Belgian State as a result of the Conka case, where a group of

Slovak Roma were all removed after a list-based summons by the Ghent police,

implying the measure was designed to supplement their asylum request case file.16

The Court claimed this was a breach of the following articles :

- art. 5 1 of the European Convention on Human Rights (ECHR) (unjustified

deprivation of freedom) for the following reasons: (a) the summons by the Ghent16ECHR.,onka, versus Belgium, Appeal 51564/99, Judgement of 5 February 2002.

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policy was clearly misleading and an authority's notifications have to be

trustworthy (unless the intention is to prevent criminal activities); (b) the

document provided at the police station mentioned the opportunity to lodge an

appeal only in small letters and in a language that the people involved could notunderstand;

- art. 5 4 of the ECHR (right to appeal to a court) because in practice there

was no real opportunity to appeal;

- art. 4 of Protocol N4 (joint removals are prohibited), with due regard to the

following combination of factors: (a) the fact that the authority had in factmentioned joint measures in connection with the Slovakian Roma; and (b) the

fact that the order to leave the country (29 September 1999) did not refer to the

individual asylum procedures of the parties in question but the general

observation that they had stayed in the country longer than three months; and

(c) taking account of the large number of Slovakian Roma that were removed at

the same time; and (d) they had to undergo exactly the same procedure and the

same papers were involved; according to the Court this means there is nothing

to suggest that this did not have a joint character;

- art. 13 of the ECHR (lack of an effective means of appeal), because the parties

in question were not able clearly to understand that they should have made an

'extremely urgent appeal' and were not able to make appropriate use thereof.

The Vermeersch Commission believes the conclusion to be drawn from the

judgement is that full and correct information has to be provided in the case of

any measures against asylum applicants. They should be clearly specified (no

small letters) in a language the parties in question can understand (this may be in

writing or with the help of an interpreter). The information has to refer to the

specific individual circumstances of each party in question (asylum request,

refusal of the asylum request, etc..). According to the Commission, failed

asylum applicants should be regularly reminded that they must leave the

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country. It should be spelled out to them that if they do not do this of their own

free will, they may be removed via an accompanied flight, which means being

detained for a short period prior to the departure. As soon as they have received

this information, - as to speak - their "luggage must almost be ready". The jointcharacter in this case is determined by the nature of the means of transport and

not by the individual circumstances of the person in question.

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4. Return Actions

Summary

Clearly, Belgium gives priority to voluntary repatriation. Substantially increasedinformation about the subject has been supplied to aliens who could beinterested by a return to their country if encouraged in some way, for instanceby means of financial support or the development of a personal project.

In Belgium, the division of competences in the field of return is clearly defined:the Minister of Social Integration organizes the voluntary returns (mainly byenlisting IOM assistance) and has created on the 1st of May a unit that

coordinates this kind of actions; the Minister of the Interior is responsible for theforced returns. Information about the possibilities of returning voluntarilycontinues to be provided, even to persons who are apprehended and put at thedisposal of the authorities in view of a forced return.

The costs for a voluntary repatriation are lower than for a forced return. Ourinquiry shows, nevertheless, that generalizing is dangerous: in case of shortdistances, for which the formalities are relatively of little importance, even asecured flight can appear to be cheaper. A case to case study of the costs isrequired in order to assess the financial consequences of the organization of thereturns, voluntary or not.

After the delivery of the report of the Vermeersch Commission in January 2005,it is time now to implement the recommendations in the different servicesconcerned. The guidelines for the removal of aliens are constantly being adaptedand meet the recommendations of the Vermeersch Commission.

Not all persons subject to an administrative control by police forces are beingdetained, even if their stay in Belgium is illegal. The number of persons put atthe disposal of the authorities is only 6%, while 44% receive an order to leavethe territory. Once detained, 25% of them can finally be released, sometimes as

the result of a positive decision on their asylum application. 4% of the detaineesparticipate in the REAB programme of IOM.

A number of the released persons have been released because the authoritieswere unable to obtain the necessary travel documents to remove the personconcerned. The steps to obtain these documents are taken by the ImmigrationOffice, which first of all has to check the nationality of the person and then musttry to get the travel documents at the diplomatic or consular representations.Agreements may exist with these representations, sometimes informal ones,which may facilitate the removals.

If problems occur or if a country systematically refuses to deliver documents toits nationals in order to enable them to return, the authorities start to implement

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a step-by-step plan involving officials of the Immigration Office, the director-general of the Immigration Office, the ambassador responsible for immigrationissues and the Minister for Foreign Affairs. As a last resort, the Prime Ministercould be asked to intervene in person.

The forthcoming introduction of biometrics in matters of immigration shouldmake it easier to remove foreigners. The legal ground for it is already existent inBelgium: a database for illegal foreigners is expected to be developed by the endof 2007 or early 2008.

4.1. Overview

The main division is obviously between the forced and voluntary return. The

forced removal comes within the scope of the Home Affairs Minister, while the

voluntary return is the responsibility of the Social Integration Minister. Forced

repatriations are carried out by the Immigration Office in cooperation with the

Federal Police. Voluntary repatriations are mainly carried out by IOM via theREAB programme, under the supervision of the Federal Agency for the Reception

of Asylum-Applicants (FEDASIL). In early July 2006 FEDASIL was endowed

with a reintegration fund with resources for the recently launched reintegration

programme.

In the case of forced removals, the entire procedure is based on the gradation

principle (cascade):

When non-nationals cannot be directly removed, which is the case primarily

when they do not have any travel documents to be accepted by the country of

destination, they are generally held in a closed centre until they can be

repatriated. Within the closed centre, they invariably enjoy the scope to appeal

to IOM for their return, but normally their departure from the country is arranged

in cooperation with the police services.

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A precondition for organising repatriation is the confirmation of the nationality

and identity of the person being repatriated. This confirmation requires the

cooperation of the foreign authorities, particularly for the issuance of a LaissezPasser.

Once the necessary documents have been secured, the alien is asked to leave,

alone, without a policy escort. In the event of a refusal a police escort is

provided and, in the final analysis, if the attempts to repatriate the person fail, a

secured flight is planned, possibly working together with other EU Member

States.

All operations for expelling an alien from the territory involve a cost.

The following table shows a comparison between the costs created by

repatriation or a forced removal and those involving a voluntary return via the

IOM REAB programme. However, prudence is called for when reading these

figures, as the staff costs are included in the REAB figures, while theyre not in

the figures of the forced return (could not be obtained).

2005 Number of people Total costs Cost/pers

Forced returns(all types) 8,539 7,053,488.3317 826.03

Voluntary returns 3,755 4,693,750.00 1250.0018

Stay in a closed centre 8,191 6,232,455.35 760.89

Annex 3 features a breakdown of the costs of the forced returns and