December 02, 2022
By Jean-Baptiste Farcy
The European Court of Human Rights (ECtHR) ordered interim measures against Belgium for failing to offer material receptions conditions to 149 asylum-seekers. In the past year, the Belgian government has failed to provide shelter to asylum-seekers due to an alleged lack of reception facilities. Thousands of domestic judgments have also been disregarded and unimplemented. Asylum-seekers have thus called on the ECtHR for solutions and redress against the current political coup against the rule of law. In this blogpost, the context of the reception crisis in Belgium is recalled and its wider politico-legal implications are assessed.
On the 31st of October 2022, the ECtHR ordered Belgium, as an interim measure, to provide shelter to Abdoulaye Camara, an asylum-seeker from Guinea, who is deprived of material reception conditions since mid-July. On the 16th of November 2022, in Msallem and 147 others, once again the Court ordered Belgium to provide adequate accommodation, food and health care to 148 other asylum-seekers. In doing so, the ECtHR ordered the Belgian government to respect and enforce domestic judicial decisions which have remained deliberately ignored.
For over a year now, the Belgian government is failing to comply with its legal obligations regarding the reception of asylum-seekers. Over 5.000 cases have been filed before domestic courts. Thousands of times, the Belgian government has been condemned for not complying with the law and for leaving asylum-seekers on the streets, without any shelter, health care or material support. However, on the ground of an alleged persistent and structural lack of reception facilities, the federal government and Fedasil, the federal agency responsible for the reception of asylum-seekers, refuse to enforce those decisions. In a meeting with lawyers, the State Secretary eventually acknowledged the lack of political will to enforce these decisions.
Considering the ineffectiveness of domestic remedies, asylum-seekers have applied to the ECtHR on the ground of Article 3 (for leaving them in a state of destitution), Article 6 read in conjunction with Article 13 (for failing to enforce domestic decisions), and Article 8 (for failing to respect their physical integrity). They also called for interim measures to force the Belgian government to execute domestic courts’ decisions and to provide them with emergency accommodation and material assistance to meet their basic needs. On the 31st of October 2022, for one applicant, and again on the 16th of November 2022, for 148 applicants, those interim measures were granted by the ECtHR.
Over the past year, the Belgian government has deliberately failed to provide reception conditions to asylum-seekers, thereby showing contempt for the rule of law, to the point that Dublin transfers to Belgium should arguably no longer take place.
The dire reality in Belgium is that asylum-seekers no longer receive immediate shelter when they introduce an application for international protection. Asylum-seekers are added to a waiting list hoping that a bed will soon become available in one of the reception facilities across the country. Fedasil claims the reception network has reached full capacity which has led to a reception “crisis” caused and fueled by the State’s mismanagement and a lack of political willingness.
As a result, lawyers have been filing hundreds of individual submissions before domestic court to ensure that the federal legislation on reception conditions (transposing the EU Directive on Reception Conditions) is complied with and correctly enforced. Since the beginning of 2022, Fedasil has been condemned over 5.000 times by the Labour Tribunal of Brussels to offer shelter to asylum-seekers. At least 5.000 asylum seekers have nonetheless been living on the streets with no assistance, except that of local NGOs and volunteers, for months (between a court decision and effective shelter, the average time is between three to four months). In addition to individual complaints, lawyers have filed submissions against the Belgian State for failing to respect its own judicial decisions. On the 31th of October 2022, the very same day the ECtHR ordered interim measures, the Court of Appeal of Brussels imposed severe financial penalties on the State (10.000€ for each day an asylum-seeker is deprived access to reception facilities).
Progressively, opposition and indignation have raised around the country. NGOs and lawyers were first to speak out, followed by the Brussels Bar Association when vulnerable people including families with children were also left on the streets. Courts, especially the Labour Court in Brussels which is dealing with a disproportionate number of applications, also raised concerns about the resulting overload of Judges and condemned the inaction of the State. Eventually, mainstream media (Le Soir, Knack, DeMorgen, LaLibre) covered the issue and spread the voices of NGOs and lawyers. Actually, only political parties have largely remained mute.
So how did Belgium end up there? Needless to say, the field of asylum and immigration is highly contested politically. The term “crisis” is often used when describing political debates around asylum across Europe. Belgium is no exception. In July 2015, Belgium was condemned by the ECtHR for failing to provide adequate reception conditions to asylum-seekers subject to the Dublin procedure. Interestingly, the Belgian government already claimed then that the reception network for asylum seekers was overstretched. The Court however rejected that justification: “Notwithstanding the fact that the reception crisis was an exceptional situation, the Court finds that the Belgian authorities should be considered to have failed to satisfy their obligation not to expose the applicants to conditions of extreme poverty for four weeks – barring two nights – having left them out on the streets with no resources, no access to sanitary facilities, and no means of providing for their essential needs” (§162).Today, the situation has worsened. Deliberately, reception conditions are no longer offered to any asylum seekers from the day they introduce their international protection application and domestic court decisions are being ignored.
The reasons behind this political crisis are manyfold. Firstly, the previous government closed many reception facilities following the peak in the aftermath of the 2015-2016 “asylum crisis”. Secondly, the Belgian Asylum Agency responsible for deciding on asylum applications (CGRA/CGVS) temporarily suspended the treatment of all international protection applications filed by Afghan nationals following the return of the Taliban to Kabul. Decisions have resumed progressively since the spring of 2022. Consequently, while the asylum applications made by Afghans remained pending, they were staying in reception facilities which rapidly became full. Thirdly, in the spring of 2022, the invasion of Ukraine started, Ukrainians left their country in large numbers and the Temporary Protection Status Directive was activated. Under that instrument, beneficiaries of the temporary protection status are entitled to suitable accommodation, thus creating additional pressure on public infrastructures. In a misleading half-truth statement to cover for her inaction towards asylum-seekers, the Secretary of State in charge of asylum and immigration declared on TV that Belgium will receive 100.000 asylum-seekers in 2022. This figure however includes over 50.000 Ukrainians who are technically not asylum-seekers (for precise figures on asylum see here).
International and European legal obligations to which Belgium is bound are nonetheless clear: not only beneficiaries of the temporary protection status but also asylum-seekers have the right to shelter and material support from the day they file an application for international protection. By refusing to respect its legal obligations which have been recalled, in vain, thousands of times by domestic courts, the Belgian government is favoring politics and force over law.
As noted above, Fedasil has now been condemned over 5.000 times by domestic courts which ordered the agency to provide housing to all asylum-seekers. However, due to a lack of political will, the enforcement of domestic judgments has been ignored by the Belgian government which deliberately and openly violates the principle of the rule of law.
Under EU law, the Reception Conditions Directive provides that material reception conditions must be available to all international protection applicants from the day they introduce their application. According to Article 17 of the Directive, “Member States shall ensure that material reception conditions provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health.” The objective of the Reception Conditions Directive is to guarantee human dignity to all asylum-seekers (see recital 35 of the Directive). Individuals who filed an application for international protection in Belgium, even though it is not the Member State responsible under the Dublin III Regulation, are also entitled to the same reception conditions as recalled by the Court of Justice of the European Union in the Cimade/GISTI case.
Considering the objective of the said Directive, the Court of Justice has ruled that the withdrawal of all material reception conditions, even temporarily for violent and abusive asylum-seekers, would be contrary to EU law. Under all circumstances, access to health care and a dignified standard of living is to be ensured for all applicants (see Haqbin and TO rulings). In a similar way, the Hungarian legislation was found to be in contradiction with the Reception Conditions Directive for ordering the detention of asylum-seekers for the sole reason that they are unable to provide for their needs.
Previously, the Court of Justice also ruled that Article 72 of the TFEU, relating to the competence of Member States with regards to the maintenance of public order and national security, cannot be read in such a way as to confer on Member States a power to depart from the provisions of EU law. On the 30th of June 2022, the Court ruled that Lithuania could not, even in the event of a declaration of an emergency due to a mass influx of asylum-seekers, deprive them of the opportunity to seek asylum and thus to receive adequate material reception conditions. In 2020, the Court found that Hungary, the Czech Republic, and Poland could not rely on Article 72 TFEU to refuse to relocate asylum seekers to their territory.
In view of the case-law of the Court of Justice, the refusal to grant asylum-seekers with material reception conditions is unjustified and thus unlawful, as recalled by domestic courts.
Yet, in a political coup against the rule of law, the Belgian government has been consciously disregarding judgments delivered by its own judges. In the field of asylum, the refusal of the Belgian government to execute a judicial decision is unfortunately not unprecedented. Immigration scholars will remember the M.N. and Others v. Belgium case delivered by the Grand Chamber of the ECtHR on 5 May 2020. In a somewhat expected judgment, the Court ruled that Belgium had no jurisdiction over the applicants who submitted humanitarian visa applications at the Belgian embassy in Beirut. However, as recalled by the third-party intervention of the Francophone and Germanophone Bar Association of Belgium (see recording after 1:34:00), this case should have never reached the ECtHR since domestic courts had already delivered three consecutive judgments ordering the Belgian State to issue humanitarian visas to the applicants. The Belgian government however refused to execute those decisions, leading the case to be brought to Strasbourg.
In Camara v. Belgium, the dispute again reached the ECtHR following the deliberate refusal of the Belgian government to execute domestic judicial decisions. In an act of defiance, the Belgian government is, once again, attacking a core value of any democratic regime, that is the rule of law. Unlike Hungary which is evading its responsibilities under EU law, or Poland which is denying judicial independence, Belgium has “simply” decided to overlook judicial decisions. Yet, by refusing to implement the Reception Conditions Directive, Belgium, as much as Hungary and Poland, is reinforcing the implementation gap of the EU asylum policy. Therefore, as for Hungary and Poland, proceedings against Belgium could be brought by the European Commission before the European Court of Justice for failing to comply with its obligations under EU law under Article 258 of the TFEU.
Considering the lack of material reception conditions in Belgium, the question whether Dublin transfers to Belgium could still be made is worth asking. For sure, given the geographical position of Belgium within Europe, the number of incoming requests is comparatively lower than outgoing requests sent by Belgium to other European countries. The statistics for 2021 nonetheless show that Belgium received over 2.200 take charge and take back requests.
According to a well-established case-law of the Court of Justice of the European Union and of the ECtHR, transfers under the Dublin III regulation must be suspended when there is a substantial risk of suffering inhuman or degrading treatment as a result of that transfer. In Jawo, the Court of Justice clarified that a transfer ought not to take place in the following scenario: “where the indifference of the authorities of a Member State would result in a person wholly dependent on State support finding himself, irrespective of his wishes and personal choices, in a situation of extreme material poverty that does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity” (§92).
Unfortunately, this particularly high threshold has arguably been reached in the case of Belgium. Because of the indifference of Belgian authorities, asylum-seekers are left in a state of destitution. Consequently, any take back or take charge requests addressed to Belgium ought to be carefully assessed, and chances are high that such requests would be deemed in violation of Article 4 of the European Charter of Fundamental Rights.
Following over 5.000 condemnations of the Belgian State by domestic courts for failing to respect its obligation to offer material reception conditions to all asylum-seekers from the day they introduce an international protection application, it is safe to say that domestic remedies have become ineffective. So far, politics and power have prevailed over law.
In their fight for justice, lawyers have had no choice but to file complaints to the ECtHR. In Camara v. Belgium and in Msallem and 147 Others v. Belgium, the Court ordered interim measures on the basis of Rule 39 of the Rules of the Court. The Belgian government was enjoined to respect the domestic judicial decision and to provide the applicants with accommodation and material assistance to meet their basic needs.
For Abdoulaye Camara and the 148 other applicants, there is (some) hope that the Belgian government will respect the injunction from the Strasbourg Court. For them, justice may be restored over the politics of force. Yet, for all other asylum-seekers deprived of housing, health care and food, the immediate future remains bleak as there is no urgent response, nor any structural solution in sight. So far, the Belgian government has chosen the dangerous road of the “rule of law backsliding” of which asylum-seekers are the victims. Let us hope that injunctions from Strasbourg will be heard and applied.