EUROPEAN MIGRATION NETWORK

Belgian Contact Point

RESEARCH STUDY III:

Forced and Voluntary Return in Belgium

The current report is the Belgian contribution to an EU-wide investigation on

Return Policies for non-nationals. This investigation is being undertaken by the
National Contact Points of the European Migration Network (EMN), a network
established in order to collect and classify information on migration and asylum,
provide access to this information and facilitate the exchange of it. The EMN
also analyses this kind of information and has its own research projects. The
intention is to identify similarities and differences in the approaches of the EU
Member States towards illegal immigrants by comparing the studies made on the
national level, to stimulate the exchange of information, to promote goodwill and
understanding between the Member States and, in this way, to contribute to
well-founded and well-informed policy making. More information about the EMN
is available on: www.european-migration-network.org
The Belgian Contact Point is financed both by the Belgian Ministry of the Interior
and the European Commission. It can be contacted by e-mail
(Benedikt.Vulsteke@dofi.fgov.be), 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 Asylum
Applicants within the Belgian Reception System, a study on migration of foreign
health professionals and Research Study II: Illegally Resident Third Country
Nationals in Belgium: State approaches towards them and their profile and social
situation.

Benedikt Vulsteke
September 2006

TABLE OF CONTENTS
EXECUTIVE SUMMARY
1. Introduction

2. Methodology, definitions and return categories

2.1.

Methodology

2.2.

Clarification of concepts and definitions

10

2.3.

Categorisation of returnees

14

3. 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
4.4.

Identification and Acquisition of Travel Documents

99
100

5. Bilateral and Multilateral Co-operation

107

6. Conclusions

114

ANNEXES

119

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 is
generally 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.

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 be
executed.
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
4

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 who
are 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
5

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 research
about 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 of
women 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
6

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 complain
that 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 the
possibilities 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.

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.

2. Methodology and clarification of concepts

Summary:
Comparing data from different member states seems particularly difficult from
the outset, because the definitions vary considerably from one country to
another. By defining the concepts, which in any case already reveal a part of the
national practices, this chapter allows to understand what Belgium means by
forced return, the different categories of decisions taken against aliens and their
implications, 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 which
they will leave the territory (on their own or accompanied by a police escort).
The voluntary return also needs clarification, because the Belgian concept of
voluntary return usually excludes the purely voluntary (independent) departures.
Actually, this only concerns the assisted voluntary returns within the REAB
framework of IOM (and some departures organized by the Immigration Office).
That is precisely what the NGOs call a consented return, as to emphasize the
fact that those who take such a step are, perhaps, not always free to choose
and 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, voluntary
or forced, are people around thirty. Many of them come from neighbouring
countries 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 for
Federal Police Airport Operations, Fedasil - Federal Agency for the Reception of
9

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 colleagues1 and 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 nonnational 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 preventive custody.
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 decision referred 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).

With special thanks to Geert Verbauwhede, Ccile Hubert, Louise NGandu, Katrien Verstraelen and David
Swalus for their contributions and/or remarks.
2
Proposal for a Directive of the European Parliament and of the Council on common standards and procedures
in Member States for returning illegally staying third-country nationals (COM 2005 (391) final)

10

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 offences
or have caused a breach of the peace.
The order to leave the territory is often seconded with an expulsion decision 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 enforce
their 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
11

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 the
Directive. 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 expulsion means 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
12

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 territory
and do not seek asylum. They are held in a centre located in the transit zone, 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 of
reviewing 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 carefullyweighed-up decision implying the availability of adequate, reliable and objective
information.
In charge of voluntary return coordination in Belgium, Fedasil seeks to followthrough 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

13

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 nonnationals 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 by
article 2 (undocumented or insufficiently documented people)
14

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 of
stay 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.

15

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 and
require 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
16

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 29
2004).
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.

17

Demographic characteristics of returnees: Origin and nationality of returnees

On the basis solely of repatriations organised by the administration, directly, with
or 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

74

Ukraine

71

China

60

Ecuador

60

Moldavia

55

DR Congo

53

Armenia

46

Immigration Office figures

18

Guinea

45

Pakistan

43

1,403 returns have to be added to these figures. 216 of these were asylum
applicants 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.

19

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 have
explored 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
12 months

2001
2002
2003
11,7 months 13,5 months 18,9 months

2004
24 months

2005
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 the
possibility of the voluntary return option while residing in a reception centre (the
20

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)
45000
40000
35000
30000
25000
20000
15000
10000
5000
0

Asylum Applications
Forced Returns
Assisted voluntary Returns

2000

2001

2002

2003

2004

2005

21

(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, the
number 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

4000
3500
3000
Asylum Request Stopped

2500

Rejected Asylum Seekers

2000

Non-Asylum ("stranded")

1500

Totals REAB

1000
500
0
2001

2002

2003

2004

2005

(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
22

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.

Age breakdown
<12
12<17
18<25
26<35
36<50
51<65
over 65
Grand Total

Family
224
116
348
653
355
52
16
1764

Single
1
16
501
756
555
128
34
1991

Grand total
225
132
849
1409
910
180
50
3755

Countries of destination:
Europe: IOM noticed an increase in the number of returns to some traditional
return countries (Slovakia and Czech Republic). The sharp increase for Slovakia
is particularly striking: from 688 in 2000 to 341 in 2002, 166 in 2004 and back
to 679 in 2005.
Latin America: starting in 2001, the trend towards an increasing number of
cases involving people originating from Latin America continued in 2005 mainly
due to the increased number of Brazilians using the REAB programme. In 2005,
92% of all the migrants returning to Latin America originated from Brazil and
Ecuador. The type of migrant returning to Ecuador is significantly different when
compared to those from Brazil or to the overall trend in the REAB programme:
most of the people returning to Ecuador are single women aged between 36 and
50 years old.

23

Africa: Voluntary returns to Africa have steadily increased since 2001. This is
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).
Asia Middle East Caucasus: The number of voluntary returns to the Asian
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.

24

Top 20 destination countries REAB 2005 (Source: IOM)

800
700
600
500
400
300
200
100

Br
S l a zi
R
ov l
us
ak
si
an U k i a
Fe rai
de ne
ra
Ar tion
m
e
B u ni a
Ko
lg
so
vo M aria
(Y ong
ug ol
os ia
la
Ec via
ua )
M do
ol r
da
G via
eo
rg
ia
I
C
ze A l r a n
ch ba
Re nia
pu
b
R
Bo
om lic
sn D a
ia R nia
-H C
e r on
ze g
go o
v
C ina
a
M na
ac d
ed a
on
Al ia
ge
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.

25

3. The political and legal framework

Summary
The (forced) removal of foreigners from the territory is a very complex question
which stands at the junction of different national and international regulations
among which three domains are particularly important: the regulations
concerning foreigners, the regulations concerning the police services and those
concerning 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 the
cornerstone on which the authorities rely for developing a removal system that is
more humane and efficient.
The successive Ministers of the Interior since then have established two
commissions, called the Vermeersch Commissions (after the professor who
presided them), whose task it was to evaluate the instructions concerning
removals (the first Commission) and to adopt guidelines as to ensure that the
removals are being carried out in a more humane manner in the eyes of the
removed persons, while assuring at the same time the safety of the police
officers and specifying their judicial situation (for the second Commission). In its
final report, the second Commission formulates no less than 34
recommendations for the attention of the different participants in the removal
procedure.
Various European texts allow common initiatives with regard to the removal of
aliens. The practice shows however that Belgium has not waited with organizing
common flights with the European partners. New initiatives are also launched in
an extra-European context, in particular by the signing of the Treaty of Prm in
2005 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 the
removal of individuals who reside illegally within the territory of the signatory
States.

26

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

reaches

crescendos 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,

Building 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

27

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 report
apparently 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,
28

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 the
removal 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. It
covered 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

29

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 leave
the 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 fits
into 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.
30

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 detention
and 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 closed for them and is not comparable with a prison: the door to the outside
world is open. The Commission has called for legislative proceedings to be
undertaken 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

31

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: people
do 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 Commission
formulated 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.

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

32

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:

33

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 for

examining 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 an
area of freedom, security and justice.
34

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 and
enforced 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;

Towards this end, Belgium has decided that the Convention shall be fully effective, which means in particular that Belgium
must ensure that all forms of torture, attempted torture, complicity and participation in torture is punishable pursuant to its
own criminal law.
7 Pursuant to this Law Book II, Title VIII, Chapter I of the Penal Code, is supplemented with a Section V Torture, inhuman
treatment and degrading treatment (articles 417 a to 417 d).
6

35

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),

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: European
Committee 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 October
2002, CPT / Inf (2002) 25. The ECPT's 13th general report of 2003 is expressly focused on the
practice of the removal of aliens by countries that are members of the Convention. See: European
Committee 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.
10
In 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: Human
Rights Committee, Final Observations, adopted on 21 and 24 July 2004, CCPR/C/SR.2210 and
2214.
8

36

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 against
Torture: Committee against Torture, Conclusions and recommendations: Belgium, 27 May 2003,
CAT/C/CR/30/6.
12 Harbour 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.

37

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:

38

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 Immigration
Act);
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.html
14

"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 on
the CIRE site or at www.ouvrons-les-yeux.be

39

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 or
more Member States, of third-country nationals who are subjects of individual removal orders, Official Journal
of the European Union 6-08-2004 (L261/28)

40

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 applicable
to 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.

41

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 February 2002 , 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 Ghent
16

ECHR., onka, versus Belgium, Appeal 51564/99, Judgement of 5 February 2002.

42

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 not
understand;
- 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 fact
mentioned 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
43

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 joint
character in this case is determined by the nature of the means of transport and
not by the individual circumstances of the person in question.

44

4. Return Actions

Summary
Clearly, Belgium gives priority to voluntary repatriation. Substantially increased
information about the subject has been supplied to aliens who could be
interested by a return to their country if encouraged in some way, for instance
by 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 by
enlisting 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 the
forced returns. Information about the possibilities of returning voluntarily
continues to be provided, even to persons who are apprehended and put at the
disposal of the authorities in view of a forced return.
The costs for a voluntary repatriation are lower than for a forced return. Our
inquiry shows, nevertheless, that generalizing is dangerous: in case of short
distances, for which the formalities are relatively of little importance, even a
secured flight can appear to be cheaper. A case to case study of the costs is
required in order to assess the financial consequences of the organization of the
returns, 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 services
concerned. The guidelines for the removal of aliens are constantly being adapted
and meet the recommendations of the Vermeersch Commission.
Not all persons subject to an administrative control by police forces are being
detained, even if their stay in Belgium is illegal. The number of persons put at
the disposal of the authorities is only 6%, while 44% receive an order to leave
the 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 detainees
participate in the REAB programme of IOM.
A number of the released persons have been released because the authorities
were unable to obtain the necessary travel documents to remove the person
concerned. The steps to obtain these documents are taken by the Immigration
Office, which first of all has to check the nationality of the person and then must
try 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 to
its nationals in order to enable them to return, the authorities start to implement
45

a step-by-step
general of the
issues and the
could be asked

plan involving officials of the Immigration Office, the directorImmigration Office, the ambassador responsible for immigration
Minister for Foreign Affairs. As a last resort, the Prime Minister
to intervene in person.

The forthcoming introduction of biometrics in matters of immigration should

make it easier to remove foreigners. The legal ground for it is already existent in
Belgium: a database for illegal foreigners is expected to be developed by the end
of 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 the
REAB 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.

46

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 Laissez
Passer.
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

Forced returns(all types) 8,539

Voluntary returns

3,755

Stay in a closed centre

8,191

Total costs
7,053,488.3317

4,693,750.00
6,232,455.35

Cost/pers
826.03
1250.0018
760.89

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

accommodation in a closed centre.
Caution should be exercised when trying to draw any conclusions from these
figures. The average cost of a repatriation that is shown is an average cost
17
18

Source: the Immigration Office accounting department (figures reported on 14-06-2006)

Figure from FEDASIL

47

provided here for illustrative purposes. There is a world of difference between a

direct repatriation for which no document is required (generally to somewhere in
Europe with very low ticket costs) and a) repatriations to far-flung countries,
where travel documents are needed, a police escort has to be arranged and the
tickets are expensive (for the aliens and the escort) plus accommodation for the
escort, and b) secured flights .
In the case of secured flights, they may be organised for various reasons. First of
all, they may tend to be more cost-effective than individual removals, owing to
the scale-effects. The administration analyses the costs by destination and in the
light of the type of plane used to try to find out the point at which they become
more financially worthwhile than individual returns. For certain European
destinations, the break-even point is reached when there are three non-nationals
to be repatriated.
Second, this type of flight may be arranged merely for security considerations or
to undertake certain repatriations that could not be achieved by means of a
regular flight. The deterrent effect these types of flight might have on illegal
migration from the country of origin is apparently limited, although no study has
really been undertaken on this subject.
Consequently, some kind of forced returns are cheaper than voluntary
repatriations via IOM, while others are much more expensive.
As for accommodation in a closed centre, the average stay for a resident is said
to cost 760.89. It has to be remembered that not all forced returns are arranged
with the closed centres as their starting points and the time a foreigner spends in
a closed centre may vary from a few days to a few months.
Solely 72.71% of the residents of closed centres are involved in a forced return.
7.85% opt for a voluntary return via the REAB programme. In their case account
has to be taken of some of the costs of the stay in the centre in order to obtain
48

a better idea of the actual cost of the return. A large percent of residents are
also released (20.36%).
Assessments/evaluations of the return actions:
As we mentioned before, the Home Affairs Minister launched two commissions
chaired by Mr Vermeersch19. The pair were tasked with rewording the
instructions for expelling failed asylum applicants, as the guidelines were
regarded as having serious shortcomings or having been misinterpreted owing to
inadequate training.
The first Commission reworded the instructions so as to avoid any potential
accidents and, more generally, to ensure the removal process is carried out
humanely, with due regard to fundamental human rights and all the international
provisions applicable in this area.
The second Commission made a further review of the expulsion issue, seeking to
recast the instructions so the removals could be undertaken humanely while
guaranteeing the security of the policy officers by spelling out their legal status.
The Commission recommendations are reflected in the reform programmes being
applied in the Immigration Office since 2004. 18 of the 34 recommendations
apply directly to the Immigration Office, 11 to the federal police and five others
to various institutions, such as, the Federal Public Service for Justice
(concerning the guardianship of minors, the fast-track procedure for complaints
about violence), the Federal Public Service Foreign Affairs, the Council of
Ministers (concerning the creation of a Standing Commission on Removal Policy).
Most of them are in the process of being implemented, particularly those
requiring a legal amendment. Annex 3 features the various recommendations
made by the Vermeersch Commission.
19

Building 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

49

In the context of the recommendations, specification attention is paid to the

monitoring of the removed people when they reach their destinations20. The
Commission speaks about the vital need to know if people, when they arrive,
have to suffer from health or security issues and is keen for the authorities to
make an objective review of the opportunities for the limits of monitoring aliens
once they return to the country. This kind of monitoring has been called for by
some non-governmental organisations with a view to ensuring protection for the
individuals.

4.2. Voluntary return

The legal basis for assisted voluntary return programmes can be found in the law
governing the Public Centres for Social Assistance (PCSA) of 8 July 1976.
According to Art 57 (2) of this law, people who have asked for return assistance
through IOM are entitled to receive benefits from the PCSA.

This applies to

people whose asylum applications have been dismissed and who have received
assistance from the PCSA since they were ordered to leave the country.
The REAB convention with IOM has been available to the Belgian state has since
1984. This convention determines the procedures for a voluntary return.
Fedasil was created in 2002. This Agency is responsible by law for the
organisation and co-ordination of voluntary return schemes.
In the course of 2006, a draft law on the reception of asylum applicants will be
proposed to parliament. This draft law stipulates that every asylum applicant
(and other non-nationals) must have access to a voluntary return programme and
-if deemed necessary and useful- reintegration assistance.
20

The Vermeersch Commission II recommendation 20

50

The administration never made any enquiries into the matter of motives for a
voluntary return and its obstacles.
A most instructive report offering a better understanding of the issue was also
published in 2006.

The survey Asylum applicants and repatriation. A

qualitative and quantitative analysis21 seeks to gain a better understanding of

what motivates (failed) asylum applicants in Belgium to return to their countries
of origin or otherwise. The research was designed by the Centre for Equal
Opportunities and Opposition to Racism and funded by the European Refugee
Fund (ERF). It is being implemented by the Catholic University of Leuven (Social
and Cultural Anthropology Department and Experiment Social Psychological
Laboratory) on behalf of the Centre. Close cooperation was being promoted with
Fedasil and IOM Brussels, during the implementation process.
The survey starts with the observation that the inflow of asylum applicants has
fallen significantly in recent years but not the outflow and there still appears to
be few people opting for voluntary returns, in spite of the actual increase in the
number of forced returns. The following is a review of the key conclusions:

A few statistical, conclusions concerning repatriation and asylum

applicants.
An average of one in every 12 asylum applicants returns voluntarily. Most
people leaving return within two years after their arrival in Belgium.
An analysis of IOM data files points to a clear link between the inflow and
outflow of (failed) asylum applicants. When the inflow of asylum
applicants rises, so does the outflow of failed asylum applicants. When
the inflow of asylum applicants falls so does the outflow. The fewer

21

The research is focused on asylum applicants in all stages of the asylum procedure, including those whose
asylum request is refused.

51

number of asylum applicants leaving the country in recent years is

therefore dependent to a large extent on the tapering off of the number of
asylum applicants entering the country. Independent of these trends, an
analysis of the data files also shows that an average of one out of 12
asylum

applicants

returns

with

the

support

of

IOM

repatriation

programme. Most of the asylum applicants who return are people who
exhausted all legal remedies, a small group of asylum applicants decide to
leave even though the procedure is still underway. An analysis of the data
files also shows a steady rise in the number of illegal immigrants opting
for a voluntary return in recent years. Half of the asylum applicants
returning with the help of IOM do so within the year. After two years 75%
return.

What do asylum-applicants know about the asylum procedure?

Many asylum applicants mainly rely on the experiences and stories of
other asylum applicants.
The research show that few asylum applicants are aware of how the
asylum procedure operates when they arrive in Belgium. The decision that
Belgium should be the destination is mainly taken by the smuggler whose
help many of the asylum applicants depend on to leave their homeland.
This also means that many asylum applicants arriving here in Belgium are
unable to rely on a social network of family members or friends to lend
them support during the first weeks of their stay in Belgium. The research
also reveals how difficult it is for asylum applicants to build up a social
network later on.
Asylum applicants receive information about the asylum procedure from
various sources. One key channel is represented by social workers in the
reception centres and lawyers. They also receive a lot of information
about the asylum procedure from other asylum applicants. The first
52

channel of information (and in particular the social workers in the

reception centres) is often looked at askance by most asylum applicants:
they are regarded as federal agents representing the government. This is a
result of the dual role played by social workers: for the asylum applicants
they are both a contact point for their day-to-day problems and a key
source of information for their asylum cases. On the other hand, asylum
applicants appear to be extremely susceptible to the stories, experiences
and anecdotes related by other asylum applicants.

How do asylum applicants regard the asylum procedure and how do they
cope with it?
Asylum

applicants

regard

the

asylum

procedure

as

insufficiently

transparent, arbitrary and unfair. Most asylum applicants claim they have
no idea how long their procedure will last and what verdict they may
expect. As they have little idea what the procedure involves, they feel the
decisions are arbitrary. They view the procedure as unjust.
How do asylum applicants cope with an asylum procedure which is
regarded as hermetic, arbitrary and unfair? Asylum applicants will seek to
increase their chances of enjoying a residence status by ruling out the
stressful situation of the asylum procedure where possible.

Several

categories of strategies for coping with the strain of the asylum procedure
may be identified. Some asylum applicants often speak about marriage as
another way of securing a residence status. A lot of asylum applicants
count on legalisation boosting their opportunities for being assigned a
residence

status.

Others

regard

the

asylum

procedure

and

the

accompanying long-lasting procedural battle as a test set by the Belgian

government to try to assess how genuine their asylum requests are.
Asylum applicants from Eastern Europe wait and hope that residence
conditions will be relaxed for them in the near future. Not all asylum
applicants actively seek strategies as an appropriate way of dealing with
53

the procedural stress. A lot of asylum applicants cope with the stress in a
more passive fashion: they focus on the positive aspects of a stay in a
reception facility.

How does voluntary return square with the hopes for the future of
asylum applicant?
Once asylum applicants have been rejected and exhausted their right to
appeal most of them become wary of living in illegal circumstances.
Travelling on to another country is an option for only a few of them. A
voluntary return is even less of an option for most asylum applicants.
Several interviews have revealed that a voluntary return is a highly
sensitive subject.

How do asylum applicants regard other asylum applicants who have returned?
The reactions of most asylum applicants to asylum applicants who return
clearly show that for them a voluntary return is a sign that the parties in
question do not have or did not have any 'genuine' problems. For many
applicants their perseverance in waiting for a residence status is simply
proof that their asylum request is genuine, whereas a return shows this is
not the case. One theory deserving further investigation is that asylum
applicants see someone who returns as disloyal to some extent, compared
with others who stay behind, and whether there is group pressure not to
return voluntarily.
Why do failed asylum applicants not return?
There is no clear answer to the question of why large numbers of asylum
applicants do not use the voluntary return option but several overlapping
factors. The length of time they spend in Belgium is often a key reason
not to return. Undergoing a lengthy asylum procedure is not solely a test
54

of the justification for their asylum request. Many asylum applicants claim
it grants them the right to stay in Belgium. Another reason is integration:
people who stay for a long time often become so well integrated that they
are no longer able to leave. Accordingly, asylum applicants claim that
during their stay in Belgium they have become estranged from their
country of origin a feeling which increases the longer they remain in
Belgium. In such a case, a return is tantamount to 'starting all over again'.
Another group refers to the Geneva Refugee Convention as a reason not
to return: even when the asylum authorities refuse their requests, they are
unable to return owing to their fear of prosecution. A final reason is that
the circumstances surrounding the asylum procedure and the situation in
the reception facilities are nonetheless better than the situation in the
country of origin.
What are the reasons for returning?
Interviews with asylum applicants point to three key reasons. Asylum
applicants who return say they are reluctant to face a multiannual
procedural battle and a stay in a reception facility in daunting material
circumstances. Many asylum applicants who return have already been
involved for a long time in the asylum procedure: they return because their
psychological resilience has been put under too much strain. They are at
the end of their tether. Asylum applicants also return because of 'external
factors', unconnected with the asylum procedure: a member of the family
who dies or is ill.
Interestingly enough, the main asylum applicants who return are those
from Central and Eastern Europe or the former Soviet Union most
because of 'external factors'. A geographical factor may play a part in this
respect. Nor do they regard a return as definitive.

55

Future return debatable but not when the residence status is uncertain.
Paradoxically enough, most asylum applicants do not rule out the
possibility of returning to their countries in the future but only when they
have already been assigned residence status.

A future return they

understand to mean a return by way of a visit or even for a somewhat

longer period.

A quantitative assessment in addition to qualitative research.

Perceptions and experiences noted during the qualitative phase of the
research were broadly confirmed during the quantitative component of the
research.
During the quantitative part, the observations from the aforementioned
qualitative component were incorporated into a measuring system to
assess whether the observations established in fact existed for the entire
group of asylum applicants. A total sample of 93 asylum applicants was
interviewed.
Most asylum applicants shared the opinion implied in the question about
the perception of the asylum procedure as being unjust, arbitrary and too
long. It was also confirmed that a lengthy stay in Belgium increases the
chances of enjoying permanent residence status. A lengthy asylum
procedure is seen as evidence of the genuineness' of the asylum request
and, they claim, grants asylum applicants the right to remain here.
As for the strategies asylum applicants develop to cope with the lengthy
asylum procedure, what is most striking is the high level of endorsement
for the cultural assimilation strategy, to indicate that asylum applicants
adopt a very positive attitude towards Belgian society. They are most keen
56

on assimilating Belgian culture and participating in our society without

forsaking their own cultures, however. They seek support among
companions in adversity and are in favour of expressing emotions'. In
other words, they find the asylum procedure stressful and also express
this emotionally.
What is immediately striking about the assessment of the hopes for the
future and the attitude towards a return is the significant level
acquiescence with 'the desire to stay'. In the case of returns it is striking
that not much thought is given to the idea of returning to the home
country at present. The asylum applicants say that returning at present is
tantamount to starting out again in the country of origin. They no longer
have anything left in the country of origin. A return also evokes feelings of
shame and failure.

Sustainability?:
The Belgian administration has no idea about the sustainability issue (regarding
voluntary return). A file is considered closed once the person arrives on his/her
home territory. This is about to change: the re-integration schemes that are put
in place include monitoring up to 12 months after the return.
Information campaigns?:
This is part of the convention between IOM and the Belgian authorities.
Methods used:
leaflets in different languages (French, English, German, Russian, Arab,
Portuguese, Serbian, ..;)
posters
a website, covering all aspects of the REAB programme
detailed country information sheets
57

a REAB newsletter
presentation of the REAB programme in the reception centres, city councils,

presentation of the REAB programme in direct contact with the target group
The information campaigns do generally have quite a broad perspective. There
are not really different approaches for different groups.
Notwithstanding this array of information techniques, Fedasil concludes that a
lot of organisations and people (e.g. police officers) are still unaware of the
programme.
In general, asylum-applicants are informed about the possibility of a voluntary
return from the moment they seek asylum in Belgium. The asylum applicants
who receive a negative decision at the admissibility stage will also receive
written information about the organisations which could help them to leave the
territory voluntarily. This information is annexed to the decision and includes the
name, addresses and telephone numbers of those associations.

Incentives to Voluntary Return

People eligible for social support (in the context of their asylum procedures)
retain this right if they apply for a voluntary return during this period of one
month. This can be extended, if there are objective reasons for doing so.
Over the years, several changes to the regulations have restricted the right of
illegal people to receive social assistance. The constitutional court has ruled that
the measure, removing the right to social assistance for foreigners having
received an order to leave the territory against which a suspensive appeal was
not introduced, is not unreasonable. When a state intends to limit immigration
and it appears that the means developed for this purpose are ineffective, it is
reasonable that the State does not provide the same help to individuals legally
58

present on its territory and to foreigners having received an order to leave the
territory.
This principle must however be combined with the right to an effective remedy.
That means that asylum applicants must continue to receive (social) assistance
during the convening to the State Council even if this appeal is not suspensive.
The REAB programme covers the travelling costs from Belgium to the country of
origin, with a basic payment of Euro 250 per adult (and between Euro 25 and
125 per child) so as to cover the initial costs after the return. Support from the
REAB programme involves a broad series of activities that may be divided into
the following five areas: general supervision, REAB supervision, organising the
trip, travel facilities and reception in the country of return. Hence it is an
inclusive programme offering immigrants supervision until their final destination
and providing a limited financial incentive (reintegration premium, extra luggage
costs).
However, Fedasil is now putting in place a new reintegration scheme, which
provides assistance of up to 700 EUR p.p., with a maximum of EUR 1,750 per
family. This assistance is provided in kind, via a partner in the country of origin.
It is up to the returnee to define what kind of assistance he or she needs. Of
course it is still not clear what the effect of these incentives will be.

The

program will be launched during the summer, and the outcomes will be closely
monitored.
The period of departure depends on a lot of parameters (e.g. the time taken to
obtain the necessary travel documents). The Agency takes a period of one
month as a reference.

Point of view of the NGO sector

59

Research

conducted

Vluchtelingenwerk

in

200422

Vlaanderen

by

the

(Flemish

non-profit-making
Refugee

Council)

associations
and

CIRE

(Coordination and Initiatives for Refugees and Aliens) are useful for learning
about the attitude Belgian NGOs adopt towards the (voluntary) return approach,
while offering some understanding of the incentives issue:
Introduction
Vluchtelingenwerk Vlaanderen worked together with CIRE in 2004 in making a
survey of the support provided for the return of rejected asylum applicants who
have exhausted their right to appeal and people illegally present in the Belgian
context. They used the research findings to develop a number of opportunities
for improving the quality of returns process.
Subsequent to the research the

Refugee Council and CIRE tabled specific

proposals about return assistance. Summarised below,23, these proposals are

preceded by priorities for policy-making. The criterion is (the term) independent
return, instead of (assisted ) voluntary return .
1. Specific concerns
Ethics
Return assistance is subject to a number of specific ethical standards. The key
characteristic of an independent return (IR) is that a return should be decided
upon at the instigation of the person him/herself. An IR is the opposite of a
forced repatriation, which takes place at the initiative of the authority. An IR
should invariably take precedence over a forced repatriation, so that a forced
repatriation should solely be the last step, after a person has been offered the
opportunity to leave him/herself. The person must be allowed this opportunity at
every stage of the removal process, according to the Flemish Refugee Council. In
22

Voluntary return assistance: Conclusions and Prospects

Vluchtelingenwerk Vlaanderen (Flemish Refugee Council), Proposals for independent returns, 6pp, December
2005.

23

60

the light of what has been said above, the NGOs claim that an IR cannot be
anything else but the decision of the person him/herself rather than his/her
supervisor or other third parties. Reception supervisors and officials from the
Immigration Office must not pressurise people into signing an independent return
declaration.
The return assistance may not be used as an instrument for other purposes,
such as for freeing up reception places or repatriating people the Immigration
Service itself cannot remove. They also believe that in the case of assistance to
return to a developing country or a post-conflict area, a condition for such
assistance must not be that the relevant person should be able to make a
personal contribution to the development or reconstruction process.
The independence of the return is guaranteed by the independence of the social
workers. Supervisors who are involved at the same time in forced repatriations
do not have the required credibility to address the IR issue.
Why is it difficult to have an open discussion about the return issue?
Highlighting an IR as an option after the asylum procedure is a key task for social
workers, particularly because less than 10% of asylum applicants are recognised
as refugees as a result of which they may stay in Belgium.
According to the report, the resistance among supervisors to a return is
attributable in some cases to the poor quality of the asylum procedure. When an
asylum procedure is not properly carried out, the safety of the returning asylum
applicant cannot be guaranteed.

Social workers also come under pressure to

compel people to opt for an IR or have the impression they are being used to
"sell" the return option. This is inconsistent with the code of practice applied
to activities focused on an independent return.
The difficulty in offering a return is also ascribed to the shortage of information
for supervisors about the country of origin. They do not know where the person
has to return to and what risks might be involved. Another obstacle to any
discussion about the matter is created by the return assistance being too
meagre. The REAB programme (carried out by IOM) obviously has its merits as a
61

basic return assistance programme but the Flemish Refugee Council claims this
does not offer any real hope for the future, so that potential returnees do not
really consider this option.
Key factors in the return decision
The research should show that most independent returns are motivated by
negative stimuli. The general feeling is that there is no future in Belgium that
may prompt a person to take the "negative decision to return, owing to the lack
of any alternative. However, what really matters are the actual opportunities to
develop one's own life in the country of origin (again). In practical terms, this
means having the opportunity for social security, an income, employment and so
on. Another factor affecting the decision-making process are the reasons
prompting a person to leave his/her country. Rejected asylum applicants who
have exhausted their right to appeal and illegally residing people often say they
are frightened about ending up in the same situation.
Other factors that may play a part are the confidence that a person may or not
have in the future of his/her country, the public services in the country of return,
the development and/or reconstruction policy being applied, the social status of
the return in his/her community, the opportunity to return to Belgium and the
scope in the land of origin for maintaining the ties the person forged during the
stay in Belgium.
Needs of prospective returnees
Rejected asylum applicants who have exhausted their right to appeal or illegally
residing people contemplating a return need practical information, such as the
exact process involved in the arrival at the airport. They also have specific
questions about their personal and family situations, such as where they may be
able to receive help in the return destination. They also need assistance with the
actual preparation of the return. Local follow-up may also be required, to
guarantee the security of returnees (monitoring in DR Congo, for example). The
62

follow-up may also take the form of social supervision, reception facilities, help
looking for employment or starting an economic activity. Financial and/or
logistical resources are required to cover the initial period, for example, or to be
able to start a self-employed activity. Most returnees also need administrative
assistance. For example they have to obtain a pass from their embassies if they
do not (no longer) have valid travel papers.
Shortcomings of the current return programme REAB (according to
Vluchtelingenwerk Vlaanderen/CIRE)
Return assistance may have undesirable effects. For example, the authors of this
report see that the REAB programme is subscribed to so as to continue enjoying
reception facilities or social support. However, the improper use of the REAB
programme has to be balanced against the very short period covered by the
order to leave the territory. A period of five days, say, is hardly enough to offer
someone the opportunity to actually opt for an independent departure .
t
A form of "tourism" is also noted amongst REAB applicants. This involves
applications where the prospective returnees regard IOM as a travel agency
sponsoring the return after a short stay (generally with a tourist visa) in Belgium.
Limiting and motivating factors in the country of origin
In many respects it is in the interests of the countries of origin of asylum
applicants and other migrants for their citizens to emigrate. For some countries,
the amount of money involved in financial transfers made by people abroad is
higher than the official development aid. These countries will generally not
facilitate the return of their citizens.
The research shows that return assistance also creates a risk of discrimination.
Most countries are unwilling for returnees to enjoy privileges not shared by the
people who stayed behind.

63

Another obstacle in the country of origin may be the negative reputation of the
(alleged) former asylum applicants. Countries may adopt a reluctant attitude to
the return of former asylum applicants, as they have after all told the authorities
in another country that they were being prosecuted in their homeland. Another
factor is the social and cultural pressure returnees experience in their
communities. They are often expected to arrive with a lot of money and
property.
Conversely, some countries are reported to be conducting a policy to encourage
people to return. This may covers tax concession, easier conditions for starting
up businesses or guaranteeing access to microcredits. Such policies are reported
to exist in Morocco, Cameroon, Algeria and Rwanda.
2. The ideal services according to the Refugee Council and CIRE
As a general principle they propose systematising the services for prospective
returnees as much as possible in the light of the actual opportunities in the
countries of return, irrespective of the country of origin or their residence status
and to do so in the framework of a comprehensive policy and tailor-made
support for individual needs and expectations. Towards this end, short-term
projects for specific target groups have to be converted into a long-term formal
policy for a broad group of people and primarily focused on lasting reintegration.
The services on offer in Belgium should be the following:
-

Psychosocial supervision (assessment of a person's circumstances,

applications for psychosocial and professional help, etc)

-

Practical information about the circumstances in the country of origin

(security, labour market, etc)

-

Assistance in completing administrative procedures (travelling documents,

luggage)
-

Socio-professional supervision (preparation for employment)

64

A business activity appears to the be most feasible option in many countries,

even though no prospective returnee has the necessary entrepreneurial skills, a
strict selection process has to be introduced and other support opportunities are
proposed.
Training in both Belgium and the country of origin strikes them as being a key
line of inquiry but there are quite a few obstacles, such as the lack of
subsequent employment opportunities, the period of time the order allows a
person to leave the territory and the question of the means of subsistence during
the training period in Belgium. This is why the initiators of the research
undertaken in 2005 recommend facilitating training in the country of origin as far
as possible, in the light of the opportunities available locally.
The services in the country of origin comprise:
monitoring (of local security via an independent agency; a side-effect could be
the encouragement of intimidation), psychosocial supervision (continuing the
supervision started in Belgium), socio-professional supervision (scope for
microcredits, monitoring projects, etc).
The NGO community therefore regards the voluntary return as an "inclusive
programme". Their reform proposal features in particular two new stakeholders
in addition to the key players now available:
-

the operational return centre

local partners as members of the entire structure.

However, there is less focus on two key dimensions of the return structure being
proposed: the costs and pull factors.
Their estimated annual cost is Euro 3,900,570, including funding for a
diplomatic and administrative centre24 (referring to IOM).

The cost should

24

Activities: contacts with authorities in the countries of return, administrative assistance; travel arrangements;
organising information campaigns;

65

roughly correspond to IOM's current financial resources) and the coordination

structure (a new unit to be set up within Fedasil)25 still has to be added. The
estimated reference scenario is broken down as follows:
-

the operational return centre: Euro 1,410,570

wage bill for the social services: Euro 687,500

funding for subcontracting by the migrant communities: Euro 300,000

information ressources: Euro 12,500

structural funding for local partners (on the basis of 2 partners/country

33 countries): Euro 560,000

-

resources for paying for grants, possibly premiums or loans: Euro

1,200,000
This costing does not feature any target figure for the number of returnees.
The authors of the report are aware that in the light of the cost of certain flights
and average purchasing power in some countries (the proposed) return projects
may have undesirable effects at times. In order to avoid such situation as much
as possible, a specific adjustment system has to be introduced (proposing a
minimum period of residence in Belgium, for example, placing a ceiling on the
premium (subsidy).

25

Activities: selecting partners on the basis of a specifications manual; creating a standing consultation body;
training the partners; quality control; database management

66

4.3. Forced Return

The resources used to arrange forced repatriations originate with the Immigration
Service and police department.

The police intercept an individual and get in

touch with the Immigration Service, which is available round-the-clock, seven

days a week. After considering the case, the Immigration Service takes a
decision and orders a release (if, for example, legalisation proceedings have been
presented and are still on appraisal with administration), the person is held in a
closed centre if a place is available and the person can be repatriated, the person
is taken to the border or ordered to leave the territory (within five days).
When an illegal foreigner is held in a closed centre, repatriation preparatory
activities are the responsibility of the Immigration Service. It takes charge of
securing the travel documents and the practical departure arrangements,
particularly the booking of a flight.
On D-Day, the Immigration Service transfer department escorts the nonnational to be repatriated to the airport, where the individual is handed over to
the federal police.

The federal police officers stationed at the airport are in

charge of escorting the interested party to the plane.

During the repatriations of non-nationals, the most common problem is reported
to be people opposing their repatriation. This may take the form of resistance or
an act of violence within the closed centre, during the transfer, at the airport or
even in the aircraft, where the cabin crew are compelled to make the person
leave the plane.
The types of problems frequently reported by the expulsion enforcement agents
are of a different type. Some people deliberately or unintentionally soil
themselves with excreta, while others cut themselves with crushed glass, razor
blades hidden in the mouth or use other ruses to avoid being transported. Some
67

people get undressed or become hysterical, while others violently resist their
expulsion, fighting with their hands and feet or biting. These actions require the
use of specific techniques and/or calling off the procedure and taking people off
the plane to return them to the closed centre.
In any event, the instructions about how the law enforcement officers should
behave in such circumstances clearly specify that any force applied should take
account, by order of priority, of the health of the person being expelled, the
team in charge of the expulsion, other people present and the security of the
flight and the inconvenience for people close by, which has to be minimised.
Restraints, such a cushions to prevent breathing (a technique that led to the
death of Semira Adamu in 1998), tranquillisers, or restrictions preventing or
complicating attempts to save people in case of need are clearly outlawed.
Exceptionally, if a person being removed is actively violent, the police authorities
draw up a statement and the public prosecutor's office has to act upon this. In
the event of a conviction, the penalty will be effective only if the party in
question returns to Belgium.
In view of the small number of people being expelled on the same scheduled
flight, there has never been any large-scale resistance at the airport. This type of
action is fortunately not very common but does occur within closed centres.
Sympathisers of the people being removed sometimes hold demonstrations and
awareness-raising activities may be targeted on passengers boarding the same
flight as the people being removed so as to incite the passengers to oppose
having these people on board, thereby causing the expulsion to fail.
Strictly speaking, no penalties are applied to aliens refusing to leave or offering
resistance during the attempt to repatriate them. When the operation ends up

68

with the alien failing to leave, the individual is (re) placed in the closed centre,
but this is not a penalty related to the resistance offered.
The period of detention starts from zero again, as the earlier period is not
included in the maximum period of time a non-national may be held in custody in
the run-up to the repatriation. A period of detention is invariably calculated on
the basis of the latest time that an alien had the opportunity to leave but did not
do so owing to the person's own action. As the Vermeersch Commission has
stressed several times26, successive refusals to leave may not therefore be
regarded as a valid reason for ending the detention in a closed centre. This policy
is severely criticised by the NGOs27.
A failure to carry out an expulsion operation is not always attributable to the
person being removed. Some repatriations cannot be carried out owing to a lack
of cooperation from the authorities in the country of origin, which do not issue
the travel documents, or a lack of cooperation from the person being removed or
even owing to the transport operator refusing to take the person on board. The
political situation in the country of origin may make it impossible to repatriate the
person to this country, in which case the alien cannot be kept in a closed centre.
Orders to leave the territory that are issued continue to apply until the individual
leaves Belgian territory or is released, by the administration or by a court
decision.
Foreigners who are released are generally issued with a further order to leave the
territory featuring a period in which to comply. Should the deadline be exceeded,
they are still at risk of being arrested again and having to undergo a further
repatriation attempt.

26
27

Op cit, page 60
Opening people's eyes to closed centres, an educational document published by CIRE, May 2006, page 9

69

Conversely, if the alien's residence situation is legalised (marriage, humanitarian

reasons), the order to leave the territory also becomes null and void.

4.3.1. Procedures of forced return: ending of illegal stay and removal order
Typology of the (forced) removal measures28
Removal at the border: A foreigner not complying with the conditions of access
to the territory is submitted to a measure of removal at the border.

This

measure is decided by the border control authorities, namely the national police.
However, an alien carrying a valid visa may be removed only after the person's
situation is presented to the Home Affairs Minister or to his delegate.
The order to leave the territory: The order to leave the territory is delivered to an
alien who is neither allowed to remain more than three months, nor authorised
to become established.

Article 7 of the Immigration Act specifies eleven

situations in which an alien who is unlawfully present on the territory or is not

established can receive an order to leave the territory.
The Ministerial Decision concerning removals and the Royal Decree concerning
expulsions:

The MD concerning Removal is a decision taken by the Home

Affairs Minister with regard to an alien having a right to remain more than three
months on the territory who has threatened public order or national safety and
did not observe the residence conditions.

Recognised refugees and stateless

persons first have to be heard by the Aliens Advisory Council. The Royal Decree
concerning expulsions is applied by the King to foreigners who are established
and seriously threatened public order or the national safety. This Royal Decree
must be deliberated in the Council of Ministers if it is based on the political

28

Based on Carlier and Sarola in Hailbronner, Refugee Status in EU Member States and Return Policies,
2005

70

activity of the foreigner. These two measures must be premised on the personal
behaviour of the non-national.
The order to leave the territory grants its recipient time to leave the territory:
It is generally eight days. Some particular cases:
It is five days for asylum applicants whose application is considered to be
inadmissible
Thirty days for asylum applicants whose request is rejected
After this deadline, the administration asks the municipality to check if the
interested party is living at the address. If this is the case, even though the
person is staying illegally, the police get in touch with the Immigration Service,
which may call for the arrest of the person, the direct repatriation if the
conditions are met, or for the person to be held in a closed centre.
The Vermeersch Commission recommends that a minimum of 10 days be
allowed for compliance in the case of people who have made an asylum request
or a request for a lawful stay.
The Vermeersch Commission recommends that unlawfully present aliens who
have not complied with the order to leave the territory should be sent a reminder
letter. The form these letters take are currently being finalised.
An order to leave the territory allowing a person to be expelled after the expiry
of the prescribed deadline also specifies that a non-compliant alien will be taken
to the border and be held towards this end for the time strictly required to carry
out this measure. Hence no separate decision is issued to the alien before the
person is repatriated. A decision to hold a person in a specific location29 may, on
the other hand, be taken separately and issued to an asylum applicant at the
same as the negative decision taken subsequent to the person's interview.
29

Annex 39 of the Royal Decree of 8 October 1981

71

When a foreigner has already received an order to leave the territory (or a refusal
of entry or expulsion order) and has not complied within the prescribed period,
the individual may be taken by coercion to the border of the person's choosing,
which does not normally include the border of States belonging to an
international treaty, and to which Belgian is bound, on crossing external borders,
or taken to a destination of their choosing, excluding these States. The foreigner
may also be held in custody in the countdown to repatriation.
An analysis of the activities shows that 9,465, or 34%, of a total 27,85630
arrests made by police officers in 2005 resulted in the people in question being
released, 1,759 were held in closed centres, 4,531 were directly repatriated and
12,110 were issued with an order to leave the territory.

Action taken in response to an interception

Direct
removals

Custodies
6%

Releases
34%

Orders to
leave the
Territory
44%

Apart from the police arrests, account has to be taken of a large number of
detentions in a specific location (i.e. in a closed centre) the Immigration Office
ordered for asylum applicants who had already made several asylum requests or
30

Immigration Office figure

72

failed to comply with one or more earlier orders to leave the territory or did not
have identity papers or adequate resources. Public order issues may also be used
as a justification for holding someone in a closed centre.
No fewer than 6,44531 actions of this kind were taken in 2005, involving people
directly imprisoned by the administration during an asylum request, making
Dublin cases available and people who, arrested as illegal, ask for asylum as
soon as they are received in a closed centre.
Any decision to notify aliens about the requirement for them to leave the
territory has to feature information identifying the issuing authority and the
recipient of the decision, the reason it was taken32 (reason in law and in fact),
the time the person is allowed to comply with the decision, the date and the
signature of the authority and the scope for appeal against the decision. The
foreigner is required to sign the decision for notification. In the event of a refusal
to sign, the authority notifying the decision writes as words "refusal to sign ".
Expulsion decisions taken in Belgium all feature the information that as well as
Belgium, the foreigners also have to leave the Member States of the Schengen
Convention.
The decisions taken are notified to the interested parties in their national
languages. An agreement is being negotiated between the Immigration Office
and the municipalities to have them notified by municipal officials at the
residence of the interested parties, particularly when the authorities check their
presence at the reference address.

31

Ditto
Law on the requirement concerning the formal grounds for administrative acts (Law of 29 July 1991, Belgian
Official Gazette of 12 September 1991)

32

73

When the first negative decision is notified to an asylum applicant (annex 26a),
the Immigration Service also informs the individual that a voluntary return is
possible if the procedure is effectively ended.
Within the closed centres, (assisted) voluntary return information is currently
amplified via such items as an IOM booklet explaining what an assisted voluntary
return involves and how it should be contemplated with IOM and agencies that
may provide further details about the matter. The booklet is available in several
languages.

74

Should a foreigner be intercepted when illegally residing in the country and

expresses a desire to leave voluntarily, the Immigration Office nonetheless
decides that person should be held in a closed centre. Once there, the alien
retains the right to undertake the procedures and get in touch with IOM.
An order to leave the territory is not issued to an alien in particular when the
person has made a request for a legalisation of residence on the basis of article
9.3 of the Law of 15-12-1980.
The legalisation request has to have been processed by the administration before
a decision may be taken about the expulsion of a foreigner and holding the
individual available in the countdown to repatriation.
Conversely, if the person cannot be repatriated or if the administration is well
aware that the travel documents needed for the expulsion is unlikely to be issued
by the consular authorities in the country of destination, the individual will be
unaffected.

75

Article 28 of the Law (15-12-1980) specifies that the alien may be taken back to
the border of his/her choice or be authorised to travel to the country of
destination of its choosing implying a country other than the country of origin
if in possession of the documents necessary to reach the destination, which is
rare.

If the alien refuses to choose or destroys the documents which would

enable him/her to enter another country, the Immigration Service determines the
border by which the interested party will leave the territory.

4.3.2 Detention
What is the current practice with respect to the detention of third-country
nationals?
First of all its should be pointed out that the

penal establishments those

accountable

have

to

the

Ministry

of

Justice

been

struggling

with

overpopulation problems for a long time, such that the number of places
earmarked for non-nationals in administrative detention have been limited. After
1994 and subsequent to a government decision, the Home Affairs Minister dealt
with the shortage of places by creating closed centres. Apart from a reduction
in the number of places available in penal establishments, the following factors
contributed to the creation of the closed centres:

the rise in the number of non-nationals within Belgium;

the pressure of public opinion, the NGOs and politicians to improve the
reception facilities for illegal non-nationals in administrative detention;

the overpopulation of the prisons resulting in a growing pressure from their

managements to keep non-nationals in administrative detention.

The Immigration Office is presently running five closed centres:

76

 The centre for illegal immigrants

in

Merksplas

(photo),

Bruges

and

Vottem;
The repatriation centre 127 bis
in Steenokkerzeel;
the transit centre 127, located in
the transit zone at Brussels-National
Airport.
Plus the Inadmissible Aliens Detention (INAD) Centre, which, in common with
the transit centre 127, is located at the airport. It accommodates people denied
access to the territory. The transit centre 127 houses people who have made an
asylum request at the border while the admissibility of the application is being
reviewed.
According to the Immigration Act, detention can apply to any alien who (See
also point 3.1. Legal and Political Framework):
-

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 Act33 (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
33

Police Act of 05-08-1992

77

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 Home Affairs Minister or the Immigration Office about
their status34.
Decisions to hold foreigners in detention until they are repatriated are taken by
the Immigration Office.
The period of detention was lengthened by successive legislative amendments to
be increased to eight months in 1996 (Hailbronner 2005, p 259).
The provisions relating to detention for the majority are as follows: The alien
can be detained [] during the time strictly necessary for carrying out of the
measure without the period of detention being able to exceed two months. The
Minister or his delegate can however extend this detention every two months,
when the steps necessary for the removal of the alien were taken within seven
working days of the alien being placed in detention, when they are continued
with all necessary diligence and when there always remains the possibility of the
alien being removed within a reasonable time. After an extension, the decision
referred to in the preceding subparagraph may now only be taken by the
Minister.

After five months of detention, the alien must be freed.

If the

protection of public order or national safety so requires, the detention may be

extended every month, after the expiry of the period referred to in the preceding
subparagraph, without the total period of detention exceeding eight months.
Hence the maximum period is in theory 5 months (2+2+1), if no public order or
national concerns are reported (8 months).

It is also important to note that

subsequent to a four-month detention period solely the Minister (and not his
representative) is authorised to decide on a further extension.

34

Return Migration, Policies and practices in Europe, IOM, 2004

78

Important as well is the jurisdiction of the Court of Cassation: it judges that

there is no provision to prevent, when a measure of removal could not be
carried out because of the unjustified opposition of the alien, a new decision
being taken in accordance with article 74/5, 1 So in reality the deprivation
of freedom could be unlimited (in case the forced return cannot be carried out
because of the opposition of the illegal immigrant).
This standpoint of the Court of Cassation was confirmed by the European Court
of Human Rights in its judgement 52467/99 of 2 June 2005 (Nancy NTUMBA
KABONGO versus Belgium).
In the case of the maximum period of detention, the Vermeersch Commission
report refers to two documents published by UN institutions. The Commission
wholeheartedly approved of the Guidelines on applicable criteria and standards
relating to the detention of asylum-applicants (UNHCR, February 1999), but
disagrees with the May 2003 Concluding Observations of the UN Committee
against Torture as regards Belgium. This UN Committee stresses its concern that
non-nationals are detained longer if they oppose their repatriation. As mentioned
earlier on, the Commission cannot agree with the view that there must be a
maximum period of detention for aliens due to be removed offer resistance to
this. The Commission holds that this resistance is inconsistent with Belgian law
so has to be dealt with, otherwise this would be unfair on people who are
removed without any resistance. It is out of step with all legal principles to
propose that repeated infringements of the law should not only go unpunished
but should also ultimately be rewarded with the right to stay in the country.
Complaints procedure:
According to the (Vermeersch) Commission, it is self-evident that complaints
about ill-treatment during a removal should generally not have a suspensive
character. The Commission claims that that a reasonable review of the situation
during a removal has to show that people who leave the country of their own
79

free will never make any complaints about manhandling. Even those who are
removed with an escort do not encounter any problems if they do not resist.
Complaints are generally made by people who act violently against their
supervisors without being provoked, or deliberately injure themselves.
Reactions to violent behaviour by people being removed may sometimes be less
than proportional and the inspection authorities have to keep a close eye on this.
This is particularly important in the case of passive rather than violent resistance
(refusing to move, for instance). However, neutral observers have noted that
some individuals are so violent that they can only be restrained by five to six
police officers. The version of events given by such a person, who is personally
the source of such violence, is difficult to accept as being objective, according to
the Vermeersch Commission. If a complaint about manhandling should halt the
removal process, this would have a knock-on effect, followed by a flood of
complaints whose justification would be very difficult to ascertain. In this kind of
situation it is perfectly reasonable and consistent with human rights principles
that a complaint should not have a suspensive effect on the removal.

The

Commission therefore urges Amnesty International and other NGOs to take

account of the fact that the undesirable side-effects of what are in themselves
acceptable claims would lead to the disorganisation of the entire removal policy
and therefore the migration policy, with all the human-related implications this
implies.

Legality of detention:
Necessity and proportionality:
The Immigration Office is allowed to use its judgement. It must justify its
decision to deprive somebody of freedom. More specifically, it most justify why
it feels a detention appears to be the most relevant means of ensuring or
guaranteeing the removal.

80

The reality of the removal and the effectiveness of the steps taken to ensure the
removal:
Detention is legitimate only if its goal (the removal) is real and is actually
pursued.
The law makes the extension of a detention subject to three conditions:
- The detention is limited to the time strictly necessary for enforcing the
removal measure
- The steps for the removal are taken within seven working days of the arrest
- An effective removal is still possible. For example, if the state of origin refuses
to deliver a laissez passer, the illegal migrant should be released.

Control of the deprivation of freedom:

Detention is subject to review by the Committals Division (Council Chamber) of
the Criminal Court. The court can only check the legality (not the opportunity)
of the decision to detain. Legality also includes external legality as well internal
legality, in comparison with Belgian law and international law. Detained aliens
may lodge an application with the Committals Division with jurisdiction for the
place where they reside, or where they are found or detained. The Committals
Division is required to deliver its decision within five working days from the date
on which an appeal is lodged, after hearing the submissions of the foreigner or
his/her attorney and the opinion of the Kings Prosecutor.

If the Committals

Division fails to deliver its decision within this period, the foreigner has to be
released. If the Committals Division decides that the foreigner should not remain
in custody, he/she will be released as soon as the decision has become final.
The Home Affairs Minister may order the alien to reside in a designated place
either until removal has been carried out, or until the appeal has been processed,
in order to prevent the possibility of absconding.

81

In addition, an appeal may be lodged with the Council of State against the
removal decision (the order to leave the territory), via an emergency appeal, in
which case the Council is required to reach a verdict during the next few hours
(if the request has been found admissible).
In the case of people denied access to the territory, the Vermeersch Commission
claims this creates a problem to do with their legal status. They may have the
Council of State assess their denial of entry. However, if this fails, or if no report
has been submitted, they must leave immediately. The Commission recommends
further specifying the legal status of these people and working out a wellconsidered and humane status for the INAD centre and transit zone.

Residents and living conditions in the closed centres

Life in a closed centre is communal but families may be exempt from this
principle35.
Each centre earmarks a wing for families. The capacity to accommodate families
was increased in 2005, while the number of families held in detention was up on
the previous year. In the case of the centre 127 bis, 81 families with a total of
144 children were held in 2004 compared with 247 families comprising 510
children in 2005.
On the other hand, the number of children held with their families in the centre
127 remained stable between 2004 (153) and 2005 (154).
Detaining families with children may be undesirable in itself but case law deems
that detaining a non-national minor does not contravene article 37 of the UN
Convention on the Rights of the Child nor article 5 of the European Convention
on Human Rights.
35

Royal Decree of 02.08.2002 on the arrangements and operating procedures for closed centres, article 84

82

Articles 8 and 9 of the International Convention on the Rights of the Child,

where States are required to maintain a children's family relationships and ensure
they are not separated from their parents, grants priority to placing children in a
closed centre with their parents, rather than in a foster home or institution.
Hence minors are detained along with their families or legal guardians so as to
maintain the unity of the family.36
As for changes to the premises, families housed in the transit centre 127 bis
have one or two private rooms, depending on the number of people.
In fact the administration does not currently have any other alternative for
expelling families than to hold them in detention but new proposals along these
lines may emerge in late 2006. The Home Affairs Minister is set to commission a
survey on alternatives to detaining families in centres. The findings should be
available and published in late 2006, early 2007.
The policy in the past was for just the head of the household to be detained,
whereas the rest of the family was asked to join him at the airport on the day
decided upon for his repatriation. This policy was severely criticised for failing to
conserve the unity of the family. Moreover, in most cases the rest of the family
was obliged to lead an illegal existence.
Nor did compelling families to present themselves to the authorities turn out to
be an effective policy, as it was hardly likely that a family would turn up
voluntarily if it knew it was going to be repatriated.
It was announced very recently (July 2006) that the family wing in Vottem
centre was being temporarily closed down.

36

Reply by the Home Affairs Minister to a question from an MP report on debates within the Commission on
Home
Affairs,
General
Affairs
and
the
Civil
Service,
11-01-2006
(see
also:
http://www.lachambre.be/doc/CCRI/html/51/iC808.html#9417)

83

The average length of time a family was held in detention was three weeks in
2005.
The Vermeersch Commission believes that splitting a family up for a short period
of time owing to practical considerations alone is acceptable provided it can be
guaranteed that the family will ultimately be reunited. An overarching principle
is that minor children may never be separated from their parents. However, if
the rest of the family continues to be untraceable owing to the unwillingness of
one of the parents or a parent does not wish to leave with the others, a parent
may be removed subsequent to a detailed investigation.
Closed centres and prisons:
Illegal people who are initially placed in a closed centre may sometimes be
transferred to prison.
This generally occurs in exceptional circumstances that threaten the security of
the closed centre and involve people engaging in violent behaviour, such as selfmutilation, injury-producing physical aggression, vandalism, death threats,
escape attempts, resistance, when these cannot be managed in closed centres
run by the Immigration Office .
In these specific cases, the Immigration Office must first of all try to
accommodate the party in one or more other centres, after which it makes a
reasoned request to the director-general of the sentence enforcement service
(Ministry of Justice), who alone is authorised to decide if the foreigner may be
committed to prison. No special treatment is provided to the individual on arrival
in prison. This does not involve temporary custody: the detention is not decided
upon by a court.
This applied to solely 48 cases between June 2002 and August 2005, or 15 or
so cases a year.
84

The Vermeersch Commission points out that theoretically it is initially

unacceptable that someone should be committed to prison without a court
having decided this. Normally people who create serious problems during their
detention should normally be seen by the examining magistrate. However, the
Commission claims a procedure via the examining magistrate is not provided for,
apart from serious offences, and is not feasible in practice in most cases,
primarily because the time involved in taking evidence is much longer than the
steps for securing a laissez passer. Consequently, an unwanted side-effect of
acts of violence is that the person in question may stay for a longer period of
time in the country.
How do closed centres differ from prisons?
Detention in a closed centre prior to removal cannot be compared with being
held in a prison. There are various reasons for this:
-

Purpose
The main purpose of a prison is to punish people, while the main purpose of
closed centres is to detain people or provide the time needed for the
administration to complete the administrative case file (identification, travel
documents ) with a view to an actual removal from the territory.

Duration
At their time of departure, aliens may decide whether or not to cooperate and
provide the information needed to arrange their return. Conversely, prisoners
have to serve their sentences, which may be shortened as a result of the
various opportunities to adjust the punishment.

Supervision
Unlike prisons, closed centres pay a great deal of attention to psychological
and administrative supervision in the run-up to the foreigner' departure and
return to the country of origin.
85

The Vermeersch Commission feels closed centres should not be regarded as

prisons, even though disciplinary punishments are involved, for example. The
system includes disciplinary punishments, which appear to be unavoidable
because anywhere where people live together they are faced with rules for
organising the coexistence. The Commission acknowledges that mistakes might
be made at times and an efficient complaint processing system is called for but
the Commission points to research that shows, without any shadow of a doubt,
that claims about unacceptable treatment are sometimes demonstrably unfair.
The measures that may be taken in the presence of a resident are described in
article 98 of the Royal Decree of 02 August 2002. This gradual measures
system ranges from a warning to being placed in an isolation room in extreme
cases. People may be placed in an isolation room for a maximum of 24 hours
and this may in no case exceed 72 hours (maximum of 3 prolongations). An
extension of the 24 hours spent in the isolation cell has to be approved by the
director-general and of the 72 hours by the Home Affairs Minister.
Apart from the Law of 15 December 1980, its implementing Decision of 8
October 1981 and the Royal Decree of 2 August 2002 concerning the
arrangements and the operational rules for closed centres, each centre has rules
of procedure with a code of practice for its staff's activities. In addition to the
rules of procedure, the staff of closed centres are subject to the legal provisions
for the status of a public servant. Violations may obviously result in penalties.
Each centre has a welcome booklet for the resident translated into several (15 to
20) languages. The booklet features the rules governing life in the closed centre,
including measures in cases the rules are broken. These measures are tailored to
the circumstances and the seriousness of the offences committed, pursuant to
the Royal Decree of 02 August 2002.
As we mentioned earlier on, the Royal Decree of 02.08.02 provides for a
complaints commission tasked with handling the individual complaints of
86

residents about the application of the Decree. 68 complaints have been received
since the complaint commission's inception (09.09.03).

45 complaints were

lodged in 2004 compared with only 23 in 2005. No complaint has been found to
be justified up to now.
The psychological and social supervision and legal assistance on offer in the
centres are important because the residents there can no longer hope to stay in
Belgium. As for human resources, each centre has six different teams:
1. Management
2. Administration
3. Each centre has a medical team comprising medical officers and nurses who
cooperate with local hospitals in the case of hospital admittances or a
specialised examination. Whatever happens, incoming and outgoing residents
undergo a medical interview to assess their state of health. During their stay,
residents may avail themselves of the medical service during the hours shown in
the welcome booklet and at any time in the case of an emergency.
4. Social team
Each centre has a social service comprising social workers and educators. Social
workers supervise residents during their stay and work in cooperation with the
psychological and medical team to look after the residents' mental welfare and
help them to see a lawyer. The right to defend the residents is therefore
guaranteed. When any opportunity of being allowed to stay has definitively been
ruled out, the social workers prepare the residents for the possibility of a
removal and try to persuade them to leave voluntarily and cooperate so the
departure is as trouble-free as possible.
The educators organise recreational, cultural and sports activities for the
residents. They also supervise the residents' inclusion in the group.
5. security team
87

6. security officers/drivers
A few examples of day-to-day activities:
When they arrive new residents are allowed to telephone for at least 10 minutes
free of charge. Residents may also ask for a legal aid lawyer if they so wish.
There is no charge for telephoning lawyers, otherwise telephone cards may be
bought or provided in return for doing a number of small chores. Residents may
also send and receive letters on a free and confidential basis.
Ethical systems and religious beliefs are respected in the closed centres. In
addition to the religious services that are held, residents may also ask for
assistance from a priest, clergy man or clergywoman, an imam or an intellectual
mentor. Religious festivals and related special ceremonies are also respected.
The residents are entitled to receive visits from members of their family,
representatives of associations and NGOs, MPs and lawyers provided the visits
are approved by the centre's director. However, such visits are not allowed to
residents in centres located in the airport (INAD and Transit centre 127) where
access is restricted for security reasons. Solely lawyers are allowed access to
these centres.
Each centre has a library where the residents are offered a varied selection of
works in several languages (French, Russian, German, Dutch, English, for
example). There is also a room with various television sets and video equipment,
plus a selection of newspapers and magazines in various languages.
The food is prepared by a private firm, which is responsible for delivering and
serving the meals. Pork never appears on the menu and account is taken of the
residents' diets (vegetarian, for example). During Ramadan Muslims are offered
special facilities (meals at night, dates, etc.)

88

Transparency; access to detention centres:

In addition to the Centre for Equal Opportunities and Opposition to Racism and
MPs from the Chamber and Senate, a number of organisations are allowed
access to the closed centres. Lawyers, too, are allowed access. The centre
127 at the airport is also open to NGOs and lawyers, while families and other
visits are denied owing to the strict security rules at the airport. NGOs are not
allowed into the INAD centre at the airport. A number of people from the Centre
for Equal Opportunities and Opposition to Racism specified by name enjoy
access. Lawyers and any confidential advisors may speak to their clients from
the INAD centre in the Federal Police office, by means of a prearranged
appointment.
On this score, the Vermeersch Commission feels the Belgian system is in
keeping with recommendation 10 of the Commissioner for Human Rights from
the Council of Europe, as regards the merits of the case and on the
understanding that in a number of instances a specific request is required to gain
access.
The European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment paid a visit to Belgium from 18.04.05 to
28.04.05.
As well as closed centres, the Committee visits any location where people are
deprived of their freedom by a public administration (prisons, specific psychiatric
centres,).
A number of recommendations (about the closed centres) were made to the
Belgian administration, including:

a recommendation for the Transfer Service to abolish the use of plastic

strips so as to phase out restraints

89

repeating earlier recommendations such as the infrastructure of the INAD

centre is not suitable for long periods of detention.

The Transfer Service is looking for a practicable alternative to plastic strips. The
strips are used solely as restraints to restrict freedom of movement when the
relevant person offers serious physical resistance at the start of a transfer
operation. They are used only rarely (one case in 2005).
As for the criticism about the INAD centre, the Immigration Service reports that
the average detention in the centre was 1.71 days in 2005.

4.3.3 Transport and removal measures

The administration uses a phased plan for expelling aliens (cascade).
Unescorted departure
The foreigner is initially at liberty to set off like a regular passenger to his/her
final destination without being escorted by any police officers. As the return is a
discrete operation and a small sum of money could be involved the person might
be willing to leave without any fuss at this stage.
When the person arrives at the airport with the transfer team from the
Immigration Office, the police take charge of the individual. The person is
searched and asked to go through a few administrative formalities before being
taken to the large waiting room. The person and the luggage is searched to
prevent any unauthorised items being taken on board the plane. The foreigner is
allowed to telephone people he/she might want to get in touch with before the
plane leaves.

90

About one hour beforehand, the person is taken to the plane without any
handcuffs. For the sake of privacy, the police vehicle used for the transfer does
not take the same route as that taken by the other passengers.
The individual is taken on board the plane after contact has been made with the
cabin crew and the person's papers have been handed to the aircraft
commander. The officers accompanying the individual are not in uniform so
cannot be recognised as police officers.
The person may go by him/herself take a seat in the plane before the other
passengers arrive, he/she is not distinguishable from the other passengers. The
individual is not handcuffed and rather than sitting next to the person, the police
remain close to the plane's entrance until it takes off.
If the person is hesitant about boarding the plane the police are allowed to
encourage the person by giving a "slight push" or "briefly and gently tugging at
the person's clothes". A team of psychologists and social workers is also on
hand so as to try to persuade the person not to make a fuss about getting on the
plane.
It should be stressed that depending on the airlines, a maximum of two or three
unescorted people (DEPUs) may leave on the same flight.

Escorted departure
The Immigration Office may make one or more attempts to have the person
leave unescorted but if the individual effectively refuses to leave unescorted, the
person is taken to a closed centre, while the legal period of detention starts from
zero again. The Immigration Office arranges the departure in cooperation with
the police and a team of police guards escort the person to the final destination.

91

In this case, the person is taken from the closed centre to the airport a few
hours before the plane leaves. The person is taken to a cell for a detailed search
of his/her luggage and person. The agents in charge of escorting the individual
are required to provide information and answer questions. Every care is taken to
ensure the operation is completed as humanely as possible. The person being
deported may also speak with a psychologist or a social worker, who can offer
assurances that the repatriation is proceeding smoothly.
The person's behaviour dictates how he/she will be taken to the airport. If the
person adopts a cooperative, positive attitude very little pressure will be used to
take him/her onto a plane. About one hour before the plane leaves the person
will be transported to the aircraft in a police vehicle specially adapted towards
this end.
The aircraft commander, who can refuse at any time to carry the alien, is
notified that a person being expelled and an escort are on board. Some airlines
refuse to allow police escorts on board as a matter of principle. The person then
enters the plane with the guards, normally one hour before the time of
departure.
This happens before the other passengers arrive. The foreigner is seated at the
back of the plane between the two guards. Care is taken to ensure the seat is
not in the central row or near the emergency exits. The guards do not wear a
uniform so cannot be recognised as police officers. They carry the deportee's
papers.
Should the person fail to cooperate, enough pressure will be used to take the
individual to the vehicle. The police always arrange to have enough officers
available so as to be able to drive passengers to the plane without any problems,
even the most uncooperative ones. The amount of pressure used will reflect the
level of resistance.

92

In such cases the alien is taken onto the plane via steps at the rear. The person
is then seated between the guards and waits for the plane to take off. The alien
is completely handcuffed, attached by means of "quick-release" handcuffs or
Velcro strips so the person can be kept under control during the flight.
A psychologist or social worker may remain at the person's side to provide
assistance if need be.
Once the operation has been completed, the other passengers may also board
the plane. These cannot see if the deportee is wearing any handcuffs but are
aware of the presence of an expelled person and a police escort. It is up to the
guards to decide when and how far the measures of compulsion may be scaled
down. The handcuffs may be removed after take-off if the person is well
behaved and thus continue the rest of the journey just like a regular passenger.
At the final destination the person will invariably be handed over to the
Immigration Services, without any handcuffs.
A maximum of one or two aliens may be carried on the same flight at the same
time and an appropriate number of guards has to be present, generally one
prison officer more than the number of aliens being expelled.
In the event of a transit via another airport, additional formalities have to be
completed so as to safeguard the legal security of the various stakeholders37.
Secured flights
When the person being repatriated offers so much resistance it is impossible to
use a regular flight for the expulsion, the illegal migrant is expelled via a secured

37

European Directive 2003/110 (not yet transposed into Belgian law)

93

flight38. A flight to one or more destinations is arranged with an aircraft specially

adapted towards this end, in cooperation with other European Member States.
When a person has to leave with a flight of this kind, the police will collect the
individual at the closed centre, where all those involved in the flight have their
luggage thoroughly searched and are escorted at all times by guards appointed
for this purpose.
Normally everybody is handcuffed. The means of compulsion used will depend
on how cooperative or otherwise the people are. Against the background of a
maximum security operation, they are transferred to the airport in a police
vehicle specially adapted for this purpose.
Cooperative foreigners are allowed to retain some freedom of movement. They
are allowed to take their seat in the bus and then board the plane quite
autonomously. Solely guardians will be on the flight. The plane is specially
adapted so as to allow the police services to operate as effectively as possible.
In the event of any resistance several measures of compulsion and protection
may be used. As soon as everyone is board, the plane is able to take off
straightaway. Whether or not the handcuffs are taken off the aliens or not
depends on the behaviour of the people being repatriated. The immigration
services are waiting for the plane at the final destination. Once the
administrative formalities have been completed and the papers checked, the
individual is handed over to the local authorities but never in handcuffs.
Some people who are not opposed to an expulsion may nonetheless also be
allowed to travel on a special flight because in certain cases it is faster than a

38

Another criterion is also used for organising a secured flight: if the destination creates a
problem for civil aviation (such as no direct flight, the country of transit or the aircraft command
will not allow any escort).

94

scheduled flight. The police escort for these people will obviously not be the
same as for those who have already resisted an expulsion.
Belgium organised 16 secured flights in 2004 and took part in eight organised by
the Netherlands, France or Germany. Immigration officials from the Immigration
Service have assisted the most flights organised in 2004 (to Turkey, Kosovo,
Guinea-Conakry, Togo, Morocco, Romania, Albania, Cameroon, Moldavia,
Serbia-Montenegro).
These secured flights were carried out with Embraer 145 or Airbus A 310
military planes, or Embraer 145 or Boeing 727 civil aircraft. 226 people were
removed by such a flight in 2004.

The flights organised by Belgium also

provided a means of removing 13 aliens staying illegally in France, Luxembourg

or the Netherlands. The Immigration Service's annual report for 2004 reveals the
provisional costs for the organisation totalled Euro 360,115. 81: this covered the
costs of the travel for 13 flights, medical costs for 12 flights and catering costs
for 10 flights.
13 secured flights were organised in 2005 to expel unlawfully present people39.
These repatriations took place on board Embraer 145 military aircraft, starting
from Melsbroek airport.
On top of these Belgian flights, the authorities were involved five times in flights
organised by the Dutch, German and Luxembourg authorities, starting from
Rotterdam, Hamburg and Luxembourg airports.
A total of 107 people were expelled by the secured flight system. Belgianorganised flights also resulted in several illegal aliens been expelled from France,
Luxembourg, the Netherlands and Germany.

39

Immigration Office, Annual Report 2005

95

Medical conditions in the context of forced removal:

During a repatriation operation carried out from a closed centre, a medical officer
has to complete a standardised ("fit to fly") document, clearly specifying if the
interested party may or not fly by plane and the precautions to be taken where
appropriate. A specimen of this document accompanies this text.
In the event of repatriation via a secured flight, a medical officer is invariably
assigned to the flight and in the event of a forced expulsion involving an escort
being cancelled or aborted at the last moment, a medical officer systematically
checks the alien to ensure the interested party has not been ill-treated.
As early as the Vermeersch Commission's first report it was specified that
medication may not be given to facilitate a repatriation. The Commission sought
the advisory opinion of the Advisory Bioethics Committee on this score. The
Committee confirmed that no medication should theoretically be given against
the will of the interested party (that would be inconsistent with the Law on
patients' rights) but the situation is not the same if the person represents a
danger for the other passengers. When a doctor is present on a plane, he/she
decides on the need to give medication if he/she considers, in consultation with
the aircraft commander, that the security of the flight or of the other passengers
could be affected. When no doctor is available it is up to the aircraft commander
to take a decision. The medication obviously may be given if the interested party
so requests or is faced with an emergency during the flight. The restriction
mentioned here applies to both secured flights and scheduled ones. According
to the second Vermeersch Commission, medication may never be given to
facilitate a removal.

If the person is extremely upset and/or suffering from

serious physical discomfort, such that medical treatment is required, the removal
has to be called to a halt.
The Vermeersch Commission also claims that restraints (handcuffs) should not
normally be used, unless they can be opened in a split second in the event of
96

danger. The restraints have to be approved by the Federal Public Service for
Transport and Mobility. In the case of secured flights, the prior consent of the
Home Affairs Minister is required for the equipment that is supposed to be used.
There is a big question mark over the use of restraints during take-off and
landing because the person in question has to be able to save him/herself as
quickly as the other passengers in the event of an emergency. Experience has
shown that some expelled people offer the strongest resistance (with violence)
during boarding and the run-up to take-off. This means they can represent a
danger for the safety of their fellow passengers. In exceptional circumstances
this may also be the case during the flight. The Commission stresses that the
aircraft commander has the final say about the use of restraints. During take-off
and during the flight, restraints and other measures of compulsion should be
used (if need be), provided they can be removed in a split second in case of
danger (quick release)
Gags are not used in Belgium.

Boxing helmets are now used during special

flights to protect the people being expelled (violent movements or head-banging

(made by themselves)).
Staff training to work in the physical operation of return
Police officers with at 12 months' experience in checking papers and keen to
work within the guard service for foreigners being expelled have to undergo a
selection procedure and then take a course offering four training modules:
- General escort techniques
- "Quick release" handcuff technique
- Transferring a foreigner to an aircraft
- Techniques for working on board an aircraft
They then have to have a final examination before they can qualify to become
guards.
97

Training modules are also available for teams of social and psychological support
workers (MPOT), while all members of the Federal Police team at the airport
receive conflict management training, a session on multiculturalism and a first
aid course.
Training courses are supposed to be organised by the European Agency for the
Management of Operational Cooperation at the External Borders (FRONTEX) but
these are still not available. Belgium has organised a few training exchanges with
France in the use of "quick release" handcuffs, for example.
Training is also available in the closed centres concerning the issue of violence
management.

4.3.4 Sustainability of forced return

The entry ban for a person being forcibly returned depends on the reason for the
deportation.
In general re-entry (after forced removal) is possible, if the migrant fulfils the
following entry conditions:
-

possession of valid entry documents depending on the persons nationality this

can be identity card, passport and/or passport and visa

the migrant stay does not exceed a maximum duration of three consecutive
months (or a combined period of stay which does not exceed three months in a
total period of six months) (this provision does not always apply to EU and EEA
nationals;

financial means of subsistence must be shown (about Euro 50 a day).

The

relevant amount has to be guaranteed in cash, through valid credit cards, on

bank accounts, or by a Belgian citizen and/or a foreigner with an indefinite
residence permit acting as a guarantor for the visitor;
98

the migrant must have a valid reason to come to Belgium (if the reason is
deemed to be unjustified, entry can be refused)

there has been no Royal Decree for expulsion or a Ministerial Decree for
Removal40 in the migrant's records for the past ten years.

The person applying for re-entry does not pose a risk for public order, national
security or public health.
Re-entry of nationals, who have to apply for a visa following forced removal, is
subject to repayment of previous removal costs.

Only on payment of the

removal costs will a visa be issued. This provision pertains only to non-EU and
non-EEA nationals, who apply for a visa for a period of less than three months.
In order to keep a record of the relevant migrants and allow embassies and
consulates to seek reimbursement, these persons' data are inserted into the
national police database (the so-called central notification bulletin). People who
have or are granted the right (either by law, by a decree, or international
regulations) to stay in Belgium for a period longer than three months (e.g. for
work, studies etc).do not have to pay back the removal costs.

4.4. Return assistance Return counselling

There is no such thing as a guide or a general policy on counselling.
Counselling on (voluntary) return is part of the social guidance given to asylum
applicants in the different reception facilities, but every reception centre
develops its own approach.

These Decrees are given to foreigners who are a threat to the national security and/or public
order. Re-entry is not possible for a period of ten years, unless the Decree is suspended or
annulled.

40

99

Counselling for illegal residents is provided on request. IOM has partnership

agreements with several NGOs. People wanting to return can go to these NGOs,
who will then open a return case file.
Fedasil is responsible for all the aspects of voluntary return, also for the
counselling aspect. In the framework of the re-integration programme, a general
approach towards counselling will be developed.
No special information is given to returnees.
For more information on this subject, see the other chapters.

4.5 Identification and Acquisition of Travel Documents

The successful completion of an expulsion procedure means the administration
has to secure travel documents from the diplomatic or consular authorities in the
person's country of origin. The Immigration Service is in charge of organising the
entire repatriation process, including securing the necessary travel documents:
laissez passer, passport or visas.
All the costs of issuing the travel documents are chargeable to the Immigration
Service. These costs may vary from Euro 0 to 250 per document. Some
documents that are issued are valid for a comparatively long time (several
months) while others are valid solely for the planned day of repatriation, hence in
case there is a delay the document acquisition process has to be restarted and
the related costs have to be paid again.
Unlike other countries, Belgium does not use language tests to decide the
nationality of a non-national. The administration primarily bases itself on
statements foreigners make, during an asylum procedure or a regularisation
application, on original documents that may feature in their case file.
100

Use is also made of interpreters from the region where a foreigner is supposed to
originate. The interview that is held helps to see if the statements are plausible
or otherwise.
Consuls from the various consular posts in Belgium are also requested to
interview foreigners likely to be from the consuls' countries. They try to speak
with them in local dialects but in fact aliens often refuse to hold a conversation
in the local languages, otherwise it would be easier to decide where they come
from. However, it is specified that French or English expressions that are
typically used in a region may help to identify a person's homeland.
Some people's nationality or ethnic group may also be detected in the light of
typical cicatrizations they have but some ethnic groups are spread out over
several national territories, so this calls for additional research.
As for the voluntary return, IOM, certain NGOs, are involved in securing the
travel documents. The Immigration Office is also involved under this heading in
the case of people being detained in a closed centre and eager to leave
voluntarily, of if a European pass has to be issued.
The main hurdles to obtaining travel documents take many forms.
First of all there is the time factor. It can take several months before certain
diplomatic or consular missions reply to a request from the administration. They
sometimes take so long that the aliens being detained have to be released.
The time it takes the diplomatic or consular missions to reply may be attributable
to their being required to present the requests to their authorities. These
authorities sometimes carry out investigations locally to see if the person being
held in Belgium, for whom the travel document is sought, does actually come
from the area that has been specified.

101

The delays may also be a result of the way each diplomatic or consular mission
is organised and how high a priority is accorded to this particular task.
Another problem is the need to provide a complete and detailed identification of
the foreigners being detained in a closed centre or the requirement for the
Belgian administration to provide the consulate an official document that is in the
alien's possession or included in the latter's case file as proof of nationality.
Several countries also refuse to issue passes to aliens who do not provide a
written statement of their willingness to return voluntarily to their countries of
origin. Others refuse to provide a travel document if it does not form part of a
procedure initiated in the context of the voluntary return. One country refuses to
issue documents because it believes the return of its citizens is hindered by the
extremely unsettled situation in the country. Some countries simply refuse to
contemplate any idea of cooperating by providing a document to enable one of
their citizens to return home.
The administration has held negotiations with the diplomatic and consular posts
to try to iron out these various wrinkles, and not least with those who will not
countenance any cooperation or those allowing the procedures to drag on.
The diplomatic and consular missions apparently have the authority to facilitate
the travel document acquisition process or otherwise but they are unable to do
anything if the request has to be sent to the home country, where a check is
made locally of the identity of the foreigners being detained in Belgium. Some
diplomatic missions are more concerned about the situation of their compatriots
in Belgium and may act more in their interests than in that of the Belgian
administration.
Relationships between the Immigration Office and the diplomatic and consular
missions of the countries of origin:

102

Various agreements have been concluded between the Belgian administration

and the diplomatic missions or the national authorities in the country of origin:
they may be oral agreements reached with the staff of a consulate or an
embassy, for the use of European passes, for example, or they may take the
form of a MOU, memorandum of understanding, or, more formally, a re-entry
agreement.
The Immigration Office identification service initially seeks solely to obtain the
travel documents. A regular assessment is made of the times it takes to secure
documents and why problems crop up. The services adopt a customised strategy
for trying to overcome the obstacles. An approach may be made higher up the
chain of command to deal with recurring problems and an official may be
dispatched to the country of origin to meet the local authorities so as to try to
arrange the return procedures for their citizens.
When the obstacles cannot be overcome, the matter is referred to the line of
command and the director-general of the Immigration Office so he can consider
the issues with the ambassador in person.
Should the negotiations fail, the matter assumes a more political dimension,
because it is referred to the Ministry of Foreign Affairs and dealt with by the
Belgian ambassador in charge of migration issues, who tries to work out a
solution and strategy, and bring more pressure to bear on the diplomatic mission
in question.
When no satisfactory solution is forthcoming in spite of this action, the Foreign
Minister (or the Home Affairs Ministers, or both) take charge of the matter and
end up convening the ambassador or placing the issue on the agenda for a
ministerial meeting between the two countries. The Prime Minister has been
known to deal with a matter personally to settle a crisis over the question of
securing travelling document for illegal foreign nationals in Belgium.

103

Belgium may sometimes conclude an agreement with a country on facilitating

the transfer of illegal immigrants to their countries of origin. This specifies that in
the event of a mistake, if, when repatriated people arrive, the local authorities do
not regard them as citizens of the country of destination, they will be put back
on the plane and readmitted by Belgium without any further formalities and at its
expense.
Belgium nonetheless proceeds very carefully and in a highly professional manner
when it comes to identifying and placing a foreign national on a plane, because
Belgium's credibility vis vis the authorities in the country of destination are at
stake and any mistake could soon put a question mark over the relevance of
agreements that are concluded.
The future: the establishment of a biometrically-based (fingerprinting being the
most obvious and cheapest technique) database on illegal, detained and
physically removed individuals:
A legal basis is available for developing a database featuring biometric records41.
This specifies in particular that a non-national who has to be returned or who
has been ordered to leave the territory or has received a Royal Decree
concerning an expulsion or a Ministerial Decree concerning a refusal of entry
may have to be fingerprinted to establish or check the person's identity and see
if the individual creates a risk to public order or national security.
The fingerprints taken are now systematically matched with the hits featured in
the database of applicants who have initiated an asylum procedure in Belgium
and, if conclusive evidence is available, with the records in the Eurodac
database.

41

Law of 15 December 1980 on the access, residence, establishment and expulsion of aliens, article 30a

104

The administration should be in a position in late 2007 or early 2008 to launch a

biometrical database on illegal immigrants.
Identification of detainees:
1 September 2005 was the date when a new operational service was created
within the Removal Directorate of the Immigration Service

called the DID

Bureau, Prison Identification.

Ten migration supervisors pay regular visits to the prisons in Belgium with a view
to identifying the detained (= people convicted for common law offences) aliens
unlawfully present in the country.
A cooperation protocol has been concluded between the Immigration Office and
the Directorate-General for the Enforcement of Punishments and Measures
(Federal Public Service for Justice) so as to define the duties and responsibilities
of these migration supervisors. The cases to be processed are selected on the
basis of a list of names of the detained aliens, a list made available by the
Directorate-General for the Enforcement of Punishments and Measures.
The migration supervisors also act as intermediaries between the aliens in
detention and the Immigration Office.
During an interview the migration supervisors provide the necessary information
about the administrative situation of the relevant aliens. They need to be
provided with better information about their possible detention after being
released by the legal authorities and the implications of this. The Immigration
Office has cooperated with the Federal Public Service Justice so as to produce
an information booklet about detained aliens. Due to be circulated in the prisons
in various language versions, the booklet seeks to explain the Immigration Office
decisions in a reader-friendly way.

105

Another less straightforward task of the migration supervisors is persuading

detained aliens to provide information about their identity and/or nationality with
a view to their repatriation after being placed at the disposal of the Immigration
Service. In other words, as soon as the aliens in question have been freed by
the legal authorities they invariably have to be identified so that they can be
repatriated directly from the prison and the level of ex-prisoners being referred to
closed centres for illegal immigrants can be reduced.

106

5. Bilateral and Multilateral Cooperation

Summary:
The cooperation among states to facilitate the return of aliens staying illegally in
Belgium or any other member state is taking shape.
The policy of readmission agreements is in the hands of the European
Commission since the entry into force of the Treaty of Amsterdam. Negotiations
are at present carried on with 11 countries (the agreement with Russia has been
signed). The Council will soon mandate the Commission to enter into
negotiations with other European countries.
Many agreements on readmission exist on the Benelux level. It is also within this
framework that the implementing protocols of the Community agreements are
negotiated.
There exist a number of administrative agreements between Belgium and Congo,
Russia and China. Some of these agreements result in facilitating the returns,
particularly by the use of European laissez passers issued by the Belgian
authorities. Other agreements are now in course of negotiation with countries
such as Nepal, Niger, Poland, Guinea, Iran, Togo, Afghanistan, India, Algeria and
Vietnam.
As for the voluntary return, Belgium has established since many years a
partnership with IOM for assistance. The REAB programme, intended for special
categories of persons, is aimed at giving the necessary information about the
possibilities of return to the country of origin and possibly travel assistance and
assistance for the reintegration in that country. Intensifying and promoting this
type of return is one of the priorities of the Belgian government.

International cooperation for forced removals

Bilateral framework
A series of administrative agreements Belgium signed with various countries of
origin are now being applied or are in the process of being negotiated. An
agreement signed with Albania, on 17 April 2001 in Tirana, was ratified on 14

107

July 2004. However the European agreement concluded in May 2006 is more
valuable as it provides for the taking back of third-country nationals.
Administrative agreements (MOU Memoranda of Understanding) have been
established with Congo, Russia and China. Others are being or have been
negotiated (orally or in written form) with Nepal, Niger, Poland, Guinea, Iran,
Togo, Afghanistan, India, Algeria and Vietnam.
The practical outcome of some of these arrangements is to smooth the return
path for non-nationals by the use of European passes issued by the Belgian
administration. This means much easier and faster procedures.
Community framework
The introduction of the Treaty of Amsterdam authorised the European Union to
sign re-entry agreements.
The Council has currently given the go-ahead for the European Commission to
negotiate re-entry agreements of this type with 11 countries: Sri Lanka, Hong
Kong, Macao, Albania, Russia (the agreement was signed in May 2006, but still
has to be ratified), Ukraine, Morocco, Pakistan, Turkey, Algeria, China.
Other negotiations are planned with Macedonia, Serbia, Montenegro, Bosnia and
Herzegovina and Moldavia, but the Commission is still waiting for Council
permission to undertake the negotiations.
Benelux framework
The power of the Benelux countries to negotiate re-entry agreements is based on
the 11 April 1960 Convention on the transfer of the control of people to the
external borders of the Benelux territory. Article 3, 1 proposes that "The High
Contracting Parties shall undertake to adopt a common internal policy towards
third states concerning the application of this Convention. They shall provide
mutual assistance towards this end ".

108

Within the Benelux framework, a large number of agreements have already been
concluded:
- France: signed on16/04/1964, ratified on16/05/1964 (currently

being

renegotiated to align it with European requirements and to settle the escorts

problem).
- Austria: signed on15/02/1965, ratified on 01/04/1965.
- Germany: signed on17/05/1966, ratified on 01/07/1966.
- Bulgaria: signed in Brussels, on 07/10/1998, ratified on 30/05/2002.
- Croatia: signed in Brussels, on 11/06/1999, ratified on 22/07/2004.
- Estonia: signed in Brussels, on 03/02/1999, ratified on 30/05/2002.
- Hungry: signed in Luxembourg, on 23/01/2002, ratified on 26/03/2003.
- Lithuania: signed in Brussels, on 09/06/1999, ratified on 30/05/2002.
- Romania: signed in Bucharest, le 06/06/1995, ratified on 29/04/2003.
- Slovenia: signed in Vienna, on 16/11/1992, ratified on 29/04/2004.
- Slovakia: signed in Bratislava, on 21/05/2002, ratified on17/03/2004.
- Yugoslavia : signed in Belgrado, on 19/07/2002, ratified on 29/04/2004.
- Latvia: signed in Brussels, on 09/06/1999, not yet ratified by Belgium .
- Switzerland: signed in Bern, on 12/12/2003, but not yet ratified by Belgium.
- Macedonia: signed in Voorburg on 30 May 2006, but not yet ratified by
Belgium
- Bosnia and Herzegovina, signed in Sarajevo on 19 July 2006
Other agreements are still being negotiated, including talks with Armenia, Bosnia
and Herzegovina, Moldavia, Azerbaijan, Georgia, Czech Republic, Algeria,
Nigeria, Mali, Cyprus, the Philippines and Mongolia.
These types of re-entry agreements facilitate the return of non-nationals
intercepted while unlawfully present in Belgium and possessing residence
documents (or copies of documents) that are no longer valid but make it possible
to confirm the alien does or did have a right of residence in another European
State before.
109

Such agreements should ideally be concluded with the EU Member States, and
feature clauses about third country nationals who should be readmitted on the
same bases as the citizens of these partner countries. This would be a solution
for aliens in Belgium that are difficult to expel or identify or in cases where
diplomatic or consular posts would be reluctant to issue passes to some of their
citizens who may evoke a right of residence in another European country.
Protocols for the application of Community agreements are also negotiated
within the Benelux framework. A protocol with Albania was signed on 9 June
2005. Protocols with Sri Lanka and Russia are still under discussion within the
Benelux context.
In early 2005 the Benelux partners agreed about the importance of considering
how to promote more effective cooperation and improve the process for
negotiating with third countries. Each delegation makes an analysis of the
problems singled out and determines its key concerns for the negotiations.
A review was also made of the link between migration and development
cooperation. This new sense of dynamism in Benelux activities in the field of
readmission resulted, on 29 June, in the adoption of a Benelux document giving
tangible shape to the common project and dealing with the future approach to
readmission. The document examined various issues: a list of priority third
countries and the timetable that has to be followed for these States, the
negotiating procedures, the terms of reference of the Benelux partner appointed
to conduct the negotiations on behalf of the Benelux countries and the link
between readmission issues and development cooperation.

110

The Prm Treaty

On 27 May 2005 in Prm, seven Members States signed a Treaty on enhancing
cross-border cooperation, particularly in the fight against terrorism, cross-border
crime and illegal migration. This involves the Benelux countries, France, Austria,
Germany and Spain. In early September, all the States that signed the Treaty
initiated the Treaty ratification process.
Article 23 of the Treaty specifies the following:
(1) The Contracting Parties shall assist one another with repatriation measures,
in compliance with EU 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, of third-country nationals who are subjects of individual removal
orders and EU Council Directive 2003/110/EC of 25 November 2003 on
assistance in cases of transit for the purposes of removal by air. They shall
inform one another of planned repatriation measures in good time and, as far as
possible, shall give other Contracting Parties an opportunity to participate. For
joint repatriation measures, Contracting Parties shall together agree on
arrangements for escorting those to be repatriated and for security.
(2) A Contracting Party may, where necessary, repatriate those to be repatriated
via another Contracting Party's territory. A decision on the repatriation measure
shall be taken by the Contracting Party via whose territory repatriation is to be
carried out. In its decision on repatriation, it shall specify the conditions for
implementation and, if necessary, also impose on those to be repatriated such
measures of constraint as are allowed under its own national law.
(3) For the purposes of preparing and implementing repatriation measures, the
Contracting Parties shall designate national contact points. Experts shall meet
regularly in a working party in order to:

111

1.

assess the results of past operations and take them into account in
future preparation and implementation;,

2.

consider and resolve any problems arising from transit as referred to

in paragraph 2.

Pursuant to article 23 the first meeting of the working group on "removal

measures" was held in Paris on 27 October.
The following subjects were considered:
- the readmission agreements that have already been concluded or still
have to be concluded between the Contracting Parties of the Prum Treaty;
- the transposition of Directive 2003/110 on assistance in cases of transit
for the purposes of removal by air;
- joint flights;
- issuing travelling documents;
- joint activities that may be considered.
Council of Europe
On 5 May 2005 the Committee of Ministers of the Council of Europe
(Strasbourg) adopted 20 basic principles on escorted returns (Guidelines on
Forced Return). These guidelines are intended to ensure forced returns are
consistent with human rights. This mainly involves a new wording of the existing
standards resulting from ECHR case law, such as the Conka judgement. As a
result, these guidelines may not be obligatory but sometimes they are the result
of rules that are compulsory (for example: articles 3, 5 and 8 of the ECHR). In a
nutshell, these principles may be said to cover a very broad range of subjects
and nearly all areas of forced returns: procedural guarantees connected with the
adopting of a removal decision, the existence and access of appeals, the
conditions for deprivation of freedom, enforcement measures that may be
applied during the forced return and monitoring in general. This is the first
international text where all stages of the forced return process are dealt with.

112

This text was prepared by the Ad hoc Committee of Experts on the Legal
Aspects of Territorial Asylum, Refugees and. Stateless Persons (CAHAR), in
which the Immigration Service has taken part.

113

6. CONCLUSIONS
The removal of aliens from the territory is a difficult balancing exercise in which
humanitarian principles and compliance with the Belgian rules of law have to be
weighed. It is therefore logic to assume that the removal policy will always be
the target of criticism, given the divergent views on such a sensitive matter.
Furthermore, forced removals require a reasonable proportion between the aimed
goal and the financial and staff investment needed to reach that goal.
This removal policy has also to take into account the developments in other
European countries in order to avoid that Belgium becomes the (only) island
where persons can reside who could not leave their luggage elsewhere. That is
the reason why the European dimension becomes all the more important in
matters of immigration and asylum in general and of removals in particular.
Secured flights jointly organized with other member states, mutual recognition of
removal decisions taken by the member states, readmission agreements
negotiated by the European Union or among the member states, the introduction
of biometrics, all these are so many necessary steps for an efficient management
of the migration flows, but can at the same time create the impression that a
fortress Europe is under construction.
The continuation of the carrying out of forced returns, combined with an asylum
policy that will be renewed completely, so as to protect more effectively persons
who are in need of a protection beyond the one granted by the Geneva
Convention, dissuading at the same time other persons who came to Belgium
mainly for economic reasons, should in principle reduce the period of time
between entry into the territory and departure.
The newly created unit within Fedasil for the coordination of the voluntary
returns further ensures the dissemination of information about the possibilities of
returning voluntarily in the open centres, where asylum seekers are being kept
throughout the first stage of the examination of their application.

114

Despite the existence of some readmission agreements, the lack of valid

documentation remains a major obstacle in the return process. Experience has
shown that readmission agreements in themselves are not an efficient means of
preventing or minimizing documentation problems. The decisive factor in the
readmission

process,

is

the

willingness

to

cooperate

of

the

consular

representatives of countries of origin in Brussels and/or the policy in the

countries of origin. Sometimes, in case of missing travel documents, a
gentlemans agreement can be negotiated whereby the authorities would apply
the rules of the agreement. Therefore, a change in consular staff in Brussels may
often lead to an improvement or deterioration of the situation related to
documentation by the country concerned.
Another practical problem is the identification of the carrier bringing the person
to Belgium, because it is known that travel and/or identity documents have been
destroyed before the migrant reaches the immigration control checkpoint. To
prevent this, the Federal Police now checks identity documents at the arrival
gates of flights considered potentially problematic. Diplomatic channels are also
often used successfully to resolve documentation problems.
Belgium adopts in its removal policy a kind of cascade system. The first removal
attempt organized by the Immigration Office is always on an unescorted basis,
unless there are indications that the person may pose a threat to public order or
security. When the removable alien refuses to cooperate, the second removal
attempt organized by the Immigration Office is always conducted with the
assistance of an escort. As a general rule, the number of escorts will equal the
number of removed foreign nationals plus one. In the case of long distance
removals, one or two additional escorts will be included.
The Vermeersch Commission, established after the death of Smira Adamu in
1998, has presented to the Minister of the Interior a report in which the
problems of the removal of aliens are thoroughly analysed and a number of

115

recommendations are formulated. The goal is to pursue a removal policy that is

as humane and efficient as possible, as it affects the most precious human
asset, namely freedom. At the Immigration Office, the implementation of these
recommendations has already begun and, on request of the Minister, some of
them were put into practice immediately. As for the Federal Police, guidelines
concerning the removal of aliens have been drawn up and are reviewed and
updated on a regular basis.
18 out of the 34 recommendations directly involve the Immigration Office. This
mainly concerns:

the preparation of the removal

the communication with the persons to be removed

the medical follow-up

the unaccompanied minors

the communication between the different services involved in the

removal

the different stages of the removal process

the training of the staff of the closed centres

the follow-up of incidents where violence has occurred, on the part of

the alien as well as on the part of the centre staff

A number of recommendations coincide with modernizing projects (tools for a

better management of government services, launched a few years ago within the
framework of a thorough reform of the Federal Government) with regard to the
closed centres and are currently carried out in that sense.
The Immigration Office recently joined forces with the Federal Police and IOM to
produce a DVD (with the parts being played by officers from these various
services) to illustrate the various stages of the expulsion process. The
advantages and inconveniences of the various choices are clearly shown. The 18

116

minute film, created by professionals, is shown in the closed centres since

September.
The Commission also called for the comprehensive training to include
professional aptitudes (covering not only the technical, behavioural, tactical and
communication dimensions but also the ethical and standards aspects of
removals).
As for the staff of the closed centres, the Immigration Office has just undertaken
some training programmes, whose impact will soon be assessed (violence
management training; persuasion techniques training in order to lend support to
non-nationals in the return acceptance process).
With regard to voluntary return, the definition used by IOM (freedom of choice
and informed decision) is a good guideline. At the same time, reliable data are
only available concerning official programmes and so we have no idea about the
number of independent returns (without any help).
An inquiry among asylum seekers shows that voluntary return is, not
surprisingly, a very sensitive issue. The hypothesis that among asylum seekers
someone who returns is considered disloyal towards the others who stay and
that group pressure exists so as not to return voluntarily, needs further
investigation.
There does not seem to be an unambiguous answer to the question why asylum
seekers make so little use of the voluntary return option. There are different
reasons that overlap with each other (duration of the stay in Belgium, alienation
from the country of origin, the social and economic situation in the country of
origin, and so forth).
Moreover, the same inquiry (Foblets Vanbeselaere) reveals that asylum seekers
mention three main motivations for returning: the hopelessness of a (future)
117

illegal stay and long judicial procedures; despair because of the long duration of
the asylum procedure; external factors (such as death or illness of a family
member). Mostly asylum seekers coming from Central and Eastern Europe and
the former Soviet Union do return (they do not consider the return as definitive
because of the geographical proximity). Paradoxically, most asylum seekers do
not exclude a possible future return to their country, but only then when they
already have obtained a residence status.
One of the REAB trends is the larger number of irregular migrants (who never
asked for asylum) entering the programme (around 50%). There is an
interdependence between the shorter time of the asylum processing and the
quick departure with REAB. This interdependence is logical for the group of
people who can easily be informed about the REAB option: asylum seekers
residing in the reception structures.
However, even though a larger number of migrants are informed about the
possibility of the voluntary return option while residing in an asylum reception
centre, NGOs and municipalities still provide the largest number of REAB
beneficiaries (66% in 2005).
The profile of the 2005 REAB returnee is according to IOM a male, originating
from Brazil (= non-asylum seeker; moonlighter), 28.5 years old and residing in
Brussels for approximately 14 months before applying for the REAB.
Just like it is the case for forced returns, the European countries play an
important role in voluntary return.

118

Annex 1: Institutions and Organizations Addressing the Issue of

Return and Repatriation
Immigration Office (Direction gnrale de lOffice des trangers)
Chausse dAnvers, 59b 1000 Bruxelles
www.dofi.fgov.be
Fedasil (Federal Agency for the Reception of Asylum Seekers)
Kartuizerstraat 21, 1000 Brussels
info@fedasil.be
www.fedasil.be
International Organization for Migration (IOM)
Montoyerstraat 40, 1000 Brussels
mrfbrussels@iom.int
www.belgium.iom.int
REAB Program of the International Organization for Migration
http://www.belgium.iom.int/REAB/
+32 2 282 45 60
State Council
Wetenschapsstraat 33, 1040 Brussels
T +32 2 234 96 11
www.raadvst-consetat.be
Federale Politie
Luchtvaartpolitie Brussel-Nationaal
Luchthavengebouw
1930 Zaventem

119

Annex 2: References
Return migration. Policies & Practices in Europe, International Organisation for
Migration, 2004, 402p
Fondements dune politique humaine et efficace dloignement dtrangers du
territoire, rapport final de la Commission Vermeersch II prsent au Ministre de
lIntrieur le 31 janvier 2005
Rapport annuel 2004 de lOffice des trangers
Rapport annuel 2005 de lOffice des trangers
Rapport annuel 2004 du Centre pour illgaux de Vottem
Jaarverslag 2004 van het Centrum voor Illegalen Merksplas
Jaarverslag 2004 van het Centrum voor Illegalen Brugge

Jaarverslag 2004 van het Repatriringscentrum 127bis

Jaarverslag 2004 van het Transit Centrum voor 127 INAD

Flux migratoires en provenance des nouveaux Etats membres de lUnion

Europenne vers la Belgique, Centre pour lgalit des chances et la lutte contre le
racisme, Bruxelles, 1er fvrier 2006

Illegally Resident Third Country Nationals in Belgium: State approaches towards

them and their profile and social situation, Belgian Contact point of the European
Migration Network, Brussels, 2005

120

Ouvrons les yeux sur les centres ferms pour trangers, dossier pdagogique dit
par le CIRE, Bruxelles, mai 2006

Comparative Study of International removals policies and practice, Eurasylum,

September 2003

Comparative Study of International removals policies and practice, Policy and

Practice in Belgium, Dirk Vanheule, University of Antwerp, 2003
REAB Annual Report 2005, IOM Brussels
Refugee Status in EU Member States and Return Policies (Kay Hailbronner),
Country Report Belgium by J-Y Carlier and S. Sarola, 2005
Asielzoekers en terugkeer: een kwalitatief en kwantitatief onderzoek, M-C
Foblets and N Vanbeselaere for The Centre for Equal Opportunities and
Opposition to Racism, 2006, 140p
Eindrapport Onderzoek Vrijwillige terugkeer, Vluchtelingenwerk Vlaanderen and
CIRE (Cordination et Initiatives pour et avec les Rfugis et Etrangers), 2005,
121p

121

Annex 3: Some data

Statistics on return
II.2.1. Figures and evolution

Year

Forced returns

Returns

Dublin

IOM+

transfers*

Immigration

TOTAL

Office (REAB)
2000

3001

5781

300

3183

12265

2001

5722

5350

272

3633

14977

2002

7510

4084

167

3225

14986

2003

7742

3336

171

2822

14071

2004

6367

1894

249

3275

11785

2005

6565

1403

571

3741

12280

*In the case of the Dublin transfers, the table features solely transfers made by
land. Transfers by plane are shown in the repatriation statistics.

122

Returns 2000-2005

2005

6565

1403 571

2004

6367

1894

3741

249

7742

5722

2001

2000

171

5781

4000

REPATRIERINGEN

6000

Terugdrijvingen

300

8000
Grensleidingen

2822

167

5350

3001

2000

11785

fForced returns
4084

7510

2002

3275

3336

Anne

2003

12280

272

14071

3225

3633

14977

3183

10000

14986

12265

12000

14000

Vrijwillige vertrek IOM+DVZ

16000
TOTAAL

A total of 12,280 people were expelled from the Belgian territory in 2005, up
495 compared to 2004.
The largest group of expulsions are repatriations, totalling 6,565 people (4,531
direct repatriations and 2,034 "standard" repatriations), followed by returns with
IOM (3,741 people).
There were also 1.403 refoulements in 2005. This decrease is attributable to the
fact that transport operators are making huge efforts to apply a better departure
inspection system.
The number of people taken back to the border (629) shot up as a result of the
application of the Dublin Regulation and other readmissions, so as to avoid any
asylum shopping.

123

Total expulsions

Positive

889

1647

58

TC 127

1604 54

69

1030

18

209

1326

140

171

12

127 bis

2068 108

29

936

100

583

1648

28

328

10

CIB

590

102

66

253

73

112

504

309

13

CIM

925

136

17

365

54

151

587

12

429

CIV

1000 120

401

49

88

538

21

373

Total

8191 529

939

3874

294

1143

6250

206

1668

44

11.46%

47.30% 3.59% 13.95% 76.30% 2.51% 20.36% 0.54%

124

Escapes

Dublin transfers

758

decision
Releases

IOM departure

asylum

Repatriations

2004 9

occupation
Returns

Number

INAD

detentions
Average

Centres

first

Detentions in closed centres and actions starting from closed centres (2005)

61

108

3,003

250

2001

1,794

1,723

87

134

3,738

312

2002

3,974

1,474

70

207

5,725

477

2003

5,016

1,336

88

238

6,678

557

2004

4,065

989

210

348

5,612

468

2005

3,874

939

294

1,143

6,250

521

average

Monthly

1,565

IOM

1,269

Returns

2000

Year

Total

Transfers

departures

Repatriations

Activities of closed centres: 2000-2005 period

7.500
7.000
6.500
6.000
5.500

Rapatriements

5.000
4.500

Refoulements

4.000

Dparts OIM

3.500
3.000
2.500

Remises frontire

2.000

Total

1.500
1.000
500
0
2000

2001

2002

2003

2004

2005

125

Breakdown of the costs of forced returns and accommodation in a closed centre

(staff cost not included)
Repatriations (figures on 14-06-2006)
Expenses

Amounts

Plane tickets

6,299,972.36

Medical expertise

173,676.14

Military aircraft

229,249.68

Travel documentation acquisition

21,245.88

Municipal

administrations

and

police

services

62,280.85

Federal police (particularly escorts)

259,722.68

Miscellaneous

7,340.74

Total

7,053,488.33

Average repatriation cost

(Total cost/number of forced returns)

826,03 Euro

Closed centres
Washing,

meals,

medication

and

cleaning products for residents

3,073,331.81

Purchases of durable (cupboards, beds,

tables, cars, washing machines, driers) 219,553.37
Closed centre operating costs

2,939,570.17

Total

6,232,455.35

Average closed centre accommodation

costs/person

760.89

126

Federal police activities at Brussels-National airport

Statistics are kept by the various services in charge of forced returns. By way of
example, the operational federal police service at Brussels-National airport, which
is by far the most significant post in Belgium from which the expulsions are
undertaken, keeps figures on its activities.
The number of attempted expulsions and the number of successful expulsions
are noted. A significant separate category features the number of operations
completed by the police services for Brussels airport transit cases. The services
take charge of people passing in transit via Brussels while awaiting for a
connecting flight, which means mobilising a significant level of human resources.

Federal
police

Attempted
at expulsions

Actual

Percentages Transit

Average level of

expulsion

of

actions per day

successes

(excluding

Brussels-

transits)

National
airport
2005

10,032

7,384

73.9%

1,544

27.7

2004

11,047

7,469

67.6%

1,793

30.2

2003

12,631

9,289

73.5%

1,235

34.6

2002

11,492

8,916

77.6%

663

31.5

2001

10,677

7,676

71.9%

826

29.3

127

Snapshot of the situation taken by the Vermeersch Commission:

Against the background of the Vermeersch activities, the Commission took a
snapshot of the detention situation in closed centres for people being removed (7
May 2004). There were 520 people being detained at the time: the bulk of them
(325 or 62.5%) were illegally residing males, followed at a clear distance by
males making an asylum application at the border (64), unsuccessful male
"inland" asylum-applicants (44), females making an asylum application at the
border (39), and illegal females (28).

As far ages are concerned, almost all

people in the closed centres (514 or 99%) were adults. 16 detainees were
minors, 15 of whom accompanied minors and one unaccompanied minor. In the
case of the length of detention, a distinction is made between illegal immigrants
and inland asylum-applicants, on the one hand, and border asylum-applicants, on
the other. In the first category 393 people had stayed less than five months in a
closed centre, 20 people were held longer than five months and one person more
than eight months. Roughly the same division is reflected in the border asylumapplicants category: 99 people detained less than five months, six over five
months and one over eight months. The same snapshot for May 2004 revealed
that 74 people placed at the disposal of the Immigration Service went to prison.

128

Annex 4: Vermeersch Commission Recommendations

1. Improving legal protection for all stakeholders.
1.1 Improving legal protection for all stakeholders
Recommendation 1: Specifying the regulations for the police services.
Recommendation 2: A consistent case processing policy during acts of violence
committed against police officials
1.2. Improving legal protection for people being expelled
Recommendation 3: Making the expulsion policy more transparent
Recommendation 4: A consistent case processing policy during acts of violence
committed against police officials
Recommendation 5: Improving the legal position of non-nationals who resort to
violence in a closed centre.
Recommendation 6: A consistent case processing policy during acts of violence
committed against closed centre staff
2. Avoiding the use of violence by all stakeholders.
2.1. Avoiding the use of coercive measures by the police services
Recommendation 7: Specifying the instructions available for coercion issues.
Recommendation 8: Specifying the coercive measures and techniques
Recommendation 9: Maximising the effectiveness of airport police staff
management
Recommendation 10: Better continuing training for the police services
Recommendation 11: Better working conditions for the police services
Recommendation 12: Better control by outside protagonists
2.2. Avoiding the use of violence by people being expelled
129

Recommendation 13: Developing an integrated, non-violent repatriation approach

Recommendation 14: Better communication with the people being expelled
Recommendation 15: Better preparedness for the people being expelled

3. Improving communication between the expulsion-related services.

3.1 Pre-expulsion communication
Recommendation 16: Better mutual communication between the relevant
services
Recommendation 17: Better communication between the relevant services and
aircraft commanders
3.2 Communication during the expulsion
Recommendation 18: Ongoing communication between the relevant services.
3.3. Communication during the transfer to the local authorities or during a
transit
Recommendation 19: Creating better communication between the police services
and representatives of Belgium abroad
Recommendation 20: Assessing how following-up the interested parties may
work in favour of their security after their arrival
4. Better protection for special categories of people.
4.1. Pregnant women
Recommendation 21: better protection for pregnant women
130

4.2. Carriers of contagious diseases

Recommendation 22: better protection against carriers of contagious diseases
4.3. Families with children
Recommendation 23: Paying special attention to families with minors.
4.4. Unaccompanied minors
Recommendation 24: Paying special attention to unaccompanied minors.

5. Including the expulsion policy in the asylum and migration chain.

5.1 Incentives for the autonomous return of aliens
Recommendation 25: Improving the autonomous return programme for aliens.
5.2. Improving the asylum procedure
Recommendation 26: Accelerating the asylum procedure quite considerably.
Recommendation 27: Improving the quality of the asylum procedure.
Recommendation 28: Restricting territorial access to people who committed
violence during a previous expulsion attempt.
5.3. Developing an integrated migration policy
Recommendation 29: Conducting an active policy against illegal immigrants at
external borders.

131

Recommendation

30:

Conducting

an

active

policy

against

undeclared

employment and illegality in the country

Recommendation 31: Conducting an active international relations policy.
Recommendation 32: Making a macroeconomic assessment of the expulsion
policy.
6. Effectively following up the Commission recommendations.
6.1. Wide distribution of the recommendations
Recommendation 33: Active distribution of the recommendations .
6.2. Effective assessment of the recommendations
Recommendation 34: Setting up a standing expulsion policy commission

132