Belgium

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

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.

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.

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 August 2018, an immigration detention centre for families opened. Undocumented families with children can be detained in this closed centre if they did not comply with the conditions of the “return houses”. Families ‘at the border’ can be detained if choose not to be placed in an alternative to detention, while border families who pose a security concern will always be detained. The grounds for national security concerns and details of how families are presented with this choice in this situation are unclear at this stage. The family detention facility adjacent to the Brussels airport is a major setback, as the government has not detained children and families in detention centres for more than 48 hours since 2009.

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.

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.

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 will detain families for up to a month.

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.