The Belgian reception crisis began more than a year ago, in the winter of 2021: as the influx of asylum seekers rapidly increased, the number of free reception places declined. Over a year later the crisis persists despite recent changes, including the recent announcement by the Belgian federal government of a new migration deal aimed at addressing the reception crisis. Civil society organisations  continue to raise concerns in relation to hundreds of people still living on streets.

In a series of posts, we put a spotlight on the Legal Helpdesk that was created to coordinate a response to the crisis. In this first piece, Mari Sewell, Danique van den Tillaar and Saskia Duis, provide an overview of the different legal efforts that built pressure on the federal government. Next week, we will publish an interview with another lawyer, Margaux Bia, who provides us with a sneak peek behind the scenes of the Legal Helpdesk.

Enforcing the right to material reception                                                   

An asylum seeker is entitled to material reception from the moment the asylum application is made, as provided in the Belgian Reception Act and the European Reception Directive. Fedasil, the Federal Agency for the Reception of Asylum Seekers, is responsible for organising and assigning reception places to asylum seekers. Since October 2021, Fedasil has faced a shortage of reception places for asylum seekers leading to newcomers, mostly single men, being denied shelter.

The crisis led to the Brussels Bar, the legal aid services of the Bar (BAJ and BJB), NGOs, lawyers and other volunteers to join forces for the first time with a common purpose: to ensure respect for the rule of law. They established a Legal Helpdesk – a collaborative initiative set up to provide asylum seekers with legal information and access to immigration lawyers, to help them when their access to basic services like housing are denied.

At the Legal Helpdesk, asylum seekers are assigned a specialised Belgian immigration lawyer to initiate proceedings in the labour court, requesting that Fedasil be ordered to give the asylum seeker a reception place. With Fedasil consistently refusing access to shelter, proceedings before the labour court to condemn Fedasil continue to be the only way for asylum seekers to enforce the legal right to reception. Initially, proceedings started before the French-speaking labour court in Brussels, but over time this expanded to other labour courts in Belgium. The first conviction of the Belgian state was on 19 January 2022. Since then, the Brussels Labour Court has condemned Fedasil almost 6,000 times to respect the law and provide shelter, health care and support to asylum seekers.

Even with the support of the Legal Helpdesk and the work of the second-line lawyers, the reception crisis did not have an immediate end in sight. In January 2022, former State Secretary for Asylum and Migration Mahdi introduced a waiting list for male asylum seekers who had already applied for asylum elsewhere in the European Union. From January 2022, persons excluded from reception were those indicated on this waiting list. However, from March 2022 onwards, every single, male asylum seeker ended up on the waiting list. Actions by the second-line lawyers before labour courts in 2022 did not lead to those with a positive court decision getting reception, but it only allowed their name on the waiting list to be prioritised. This had perverse effects, as those asylum seekers that were not getting access to a second line lawyer would end up being pushed further down the waiting list.

As well as an ethical issue, it is also a rule of law issue if single men are only able to receive reception and enforce their legal rights through court decisions. Notably, concerns about respect for the rule of law are shared by the judiciary: in May 2022, the French-speaking labour court of Brussels indicated in a press release that it had a high number of urgent appeals against Fedasil, indicating its concerns on this trend.

Requests for interim measures with the ECtHR

Despite the thousands of national court decisions in favour of asylum seekers, no improvement was made, and, in the summer of 2022, the reception crisis took a turn for the worse. In addition to single, adult males, unaccompanied minors, single women, families and people with medical conditions began to be denied reception. This triggered lawyers and volunteers to take further action and seek legal remedies outside of the national remit. With the help of volunteers from the Legal Helpdesk, applications for interim measures were submitted to the European Court of Human Rights (ECtHR).

These so-called Rule 39 requests, if granted, enable the ECtHR to order interim measures to the Belgian state; these interim measures are urgent measures which can be imposed only when there is “an imminent risk of irreparable damage”. Failing to respect these measures would be considered a violation of Article 3 ECHR, which prohibits inhumane and degrading treatment. The requests were meant to put additional international pressure on the government.

The requests were also submitted for single men, for whom the national legal procedures had been exhausted, but whom had still not been granted reception. On 31 October 2022 the ECtHR pronounced interim measures for a Guinean national (Camara v. Belgium). On 15 November 2022, there was a breakthrough when the ECtHR announced interim measures for 148 single men: “The Court decided to enjoin the Belgian State to comply with the orders made by the Brussels Labour Court in respect of each of the applicants and to provide them with accommodation and material assistance to meet their basic needs for the duration of the proceedings before the Court” (Msallem and 147 Others v. Belgium). After these measures, rule 39 requests continued to be introduced.  According to the ECtHR statistics, 68% or a total of 748 of the Rule 39 procedures in 2022, related to the ongoing shelter crisis in Belgium.

Recouping financial penalties

Lawyers and NGOs also issued proceedings to claim the penalties awarded by labour courts, because of Fedasil and the Belgian government’s disregard of the right to reception and non-respect for the rule of law. In numerous cases, Fedasil and the Belgian State had been convicted to paying financial penalties, often so high in order to have a deterrent effect. Various parties even returned to the court of first instance requesting an increase of the fines imposed, hoping that higher fines would spur action. The French-speaking labour court in Brussels granted their request and imposed financial penalties of €10.000 for each day an asylum-seeker is deprived access to reception facilities.

Attempting to claim the penalties left unpaid by Fedasil throughout 2022, multiple NGO’s also went before court for seizure. With the help of a bailiff, they compiled a list of valuables not essential to the functioning of the Fedasil office that could be recovered. The goods identified were sold at a public auction.

Looking ahead

In February 2023, limited places had been made available by Fedasil and asylum seekers continued to be denied shelter daily. As of March 2023, 1,132 interim measures had been granted by the European Court for Human Rights against the Belgian state, 5,991 convictions of Fedasil by the Belgian labour courts and 2,300 asylum seekers were on the waiting list for a reception centre. The Legal Helpdesk is therefore expected to continue its operations throughout 2023 and has been recognised by the Brussels Bar as an initiative for trainee lawyers to gain credits through the “carrefour des stagiaires”.

The Belgian reception crisis has not gone unnoticed in other European member states. Recently, the Dutch court in The Hague refused to return an asylum seeker to Belgium according to the Dublin rules, because the asylum seeker could face inhumane treatment if returned to Belgium due to the lack of reception places. Over the past months, the Belgian government has stressed the importance of a good functioning of the Dublin system; paradoxically, the ongoing reception crisis in Belgium now itself undermines the functioning of the system.

On 9 March 2023, the Belgian government announced a migration deal aimed at tackling the reception crisis, among other measures. The package provides for the creation of an additional 700 shelter places in containers and ensuring that asylum seekers with a negative decision are quickly and effectively returned. Despite this announcement, the Belgian state continues to evacuate squats occupied by asylum seekers without a reception place.

Notably, one of the well-known squats in Schaerbeek’s Paleizenstraat which was home to over 700 asylum seekers, was evacuated in February 2023 with the assistance of Fedasil. Despite assurances by the authorities and Fedasil, this operation did not lead to the rehousing of all asylum seekers living there. Only 250 asylum seekers were sent to emergency shelter centres while the others were left homeless. This trend has continued in March with asylum seekers forcibly evacuated from tent squats on the Brussels canal, from an abandoned hangar and under siege by federal police in a vacant government building. The attempts by governments to evacuate squats in this instance exacerbate the crisis and put enormous pressure on an already fragile network.

Tijd voor Mensenrechten biedt een platform aan mensenrechtenexperten, en gaat de kwaliteit van bijdragen na voor die op het platform verschijnen. Analyses en standpunten blijven niettemin de verantwoordelijkheid van de auteur.

Mari Sewell, Danique van den Tilaar en Saskia Duis

This article is written by Mari Sewell, Danique van den Tillaar and Saskia Duis, (Senior) Immigration Consultants at Fragomen. Besides working on labour immigration, they focus on pro bono initiatives such as the legal helpdesk as well within Fragomen.

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