Bélgica

49

Date of publication: August 12, 2018

Data collected on: July 31, 2018

El Gobierno de Bélgica prohíbe la detención de niños, niñas y adolescentes no acompañados. Sin embargo, los procesos de determinación de la edad para niñez no acompañada son insuficientes, lo que puede conducir a situaciones de detención de niños, niñas y adolescentes detenidos con adultos no emparentados.

Los niños, niñas, adolescentes y sus familias son colocados en las denominadas “casas de retorno”, las cuales son centros de residencia abiertos considerados alternativas a la detención. Sin embargo, algunas familias han sido detenidas cada año durante lapsos cortos de tiempo tanto a su llegada como previamente a su salida, con un límite de tiempo máximo de 48 horas.   

Es preocupante el hecho de que el gobierno actualmente esté construyendo un nuevo centro de detención adyacente al aeropuerto de Bruselas con el propósito detener a las familias durante mayores periodos de tiempo. Esto representa un paso hacia atrás, ya que el gobierno no ha detenido a niños, niñas, adolescentes y a sus familias en centros de detención durante más de unas pocas horas desde 2009.

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Scorecard

Tratados internacionales 18 / 20
Legislación Nacional 5 / 10
Identificación y Atención 10 / 26
Colocación 8 / 12
Derechos 13 / 20
Supervisión 3 / 12
SUB TOTAL 57 / 115
Puntos de penalización -9 / -15
Puntos de bonificación 1 / +15

Details

Tratados internacionales 18/20

Belgium has ratified four of the six Conventions and Protocols that assist in the protection of children in the context of migration.

Recomendación:

The Government of Belgium is encouraged to ratify the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

Legislación Nacional 5/10

Belgian law prohibits unaccompanied children from being placed in detention. However, unaccompanied children can be held in detention centres while they are undergoing age assessment tests, which can take up to 6 working days. Children undergoing age assessments should be protected from detention. The same Law allows for the detention of families with children if the place is adapted to the needs of families with minor children.

Recomendación:

The Government of Belgium is commended for protecting unaccompanied minors from detention, however the government is encouraged to extend this protection to unaccompanied children of all ages while they await age assessments. This would reduce the severity of psychological damage experienced in detention by all unaccompanied children. Additionally, the government is urgently encouraged to extend protection from detention to all children, including those accompanied by their family.

Identificación y Atención 10/26

Belgium has some processes for integrating migrant children into the community, mainly for unaccompanied children. Informal Best Interest Assessments are provided for unaccompanied children. The centralised Guardianship model is commendably independent from immigration, but there are significant areas for improvement: guardians need more comprehensive training, caseloads need to be manageable and guardians need to be appointed immediately, even during the age assessment procedure when the age of the child is in doubt. Documentation and some translation services are available.

As for children migrating with their families, there is no Best Interest Assessment process within legal procedures to obtain a stay in Belgium, nor in detention decisions. There is no system in place, organised by the authorities, to provide holistic case management. The support provided is fragmented. Documentation for accompanied children depends on their parents’ immigration status and documents. Due to a legal amendment of September 2016 there have been significant barriers to accessing legal advice.

Recomendación:

The Government of Belgium is urgently encouraged to introduce and strengthen processes to ensure child-sensitive migration systems for children migrating with their families. Formal Best Interest Assessment procedures should be introduced for all children, and informed by existing informal processes for unaccompanied children.

Colocación 8/12

Some placement options in Belgium are to be commended for being sensitive to the needs of migrant children. However, the reception of families seeking asylum can involve immigration detention – urgent improvements need to be made to the quality of reception to ensure that small-scale structures are given preference over larger-scale facilities. In 2018, an immigration detention centre for families with children is due to open. Families with children are at risk of being detained in this closed centre if they have absconded from a “return house.” There is a risk that families arrested at the border or airport will also be sent to this new detention centre without consideration of less coercive measures. All of this would be a considerable step backwards for Belgian policy.

Recomendación:

The Government of Belgium is strongly encouraged to improve placement options and ensure that holistic case management is used to compliment engagement in placement programs. Child detention should never happen, and new structures should not be built to serve this purpose.

Derechos 13/20

Access to rights is variable in Belgium, with considerably more rights afforded to unaccompanied children. Access to education is established in law, although this is difficult to access for families in return procedures and held “return houses.” Belgium is to be commended for providing general access to social assistance and health care. However, undocumented families with children can only access emergency health care and social assistance in the form of reception in a “return house” which is available provided that families comply with return processes.

Recomendación:

The Government of Belgium is commended for efforts to uphold the rights of migrant children to non-discriminatory access to education, and for establishing firewall protections in legislation. However, improvements are needed. The Government of Belgium is strongly encouraged to establish accessible reception and housing, ensure access to social welfare, permit parents to seek employment, and uphold the rights of undocumented children.

Supervisión 3/12

The oversight of immigration detention in Belgium must be improved. The decision to detain a family with children is under exclusive authority of the immigration office. This administrative decision is only subject to judicial oversight in order to evaluate compliance with the law, rather than to consider the individual merits of the case. Moreover, this review is not automatic. Belgium has not yet appointed an independent body to perform regular monitoring and reporting on the running of its immigration detention centres. Certain international and national institutions and organisations are allowed to visit the detention centers for monitoring purposes. Immigration detention statistics are published each year, but provide insufficient details and do not report specifically on children.

Recomendación:

The Government of Belgium must improve its score by setting up a regular monitoring body, ratifying and implementing OPCAT, improving the judicial control of detention decisions, and by publishing disaggregated detention population statistics on a monthly basis.

Puntos de penalización -9/-15

The insufficient age determination techniques for unaccompanied children in Belgium mean that children can be assessed as adults, and detained for long periods of time, contradicting the law that no unaccompanied child should be detained. Belgium both transfers and returns children to territories where they could be at risk of detention. In addition, family unity is often not respected with one member of the family being subject to detention while the rest of the family lives in the community. The new detention facility that is being built will be used to detain families.

Recomendación:

The Government of Belgium is strongly encouraged to abolish the detention of children, in law and in practice. Notwithstanding this recommendation, the government is encouraged to end transfer and return practices, and to ensure children undergoing age assessments are not detained with unrelated adults.

Puntos de bonificación 1/15

Belgian law protects unaccompanied children from detention; however, there is no evidence of any political will to end the immigration detention of all children and their parents. In fact, at the moment facilities are being built to detain entire families.

Recomendación:

The Government of Belgium is encouraged to abide by international law and standards by preventing the detention of all children, halting the construction of a family detention facility, and strengthen alternatives to detention through the use of holistic and humane case management.

This scorecard has been assessed by the Belgium NextGen Index Committee:

  • Plate-forme Mineurs en Exil
  • Caritas International
  • UNHCR
  • JRS Belgium
  • Ciré
  • Vluchtelingenwerk Vlaanderen

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