Exploring Vulnerability's Challenges and Pitfalls in Belgian Ayslum System - Research Report on the Legal and Policy Framework and Implementing Practices in Belgium

EXECUTIVE SUMMARY

This research report has been published as part of the EU Horizon 2020 VULNER research project (www.vulner.eu). Our project arose from the finding that the requirement to address migrants’ multiple and various vulnerabilities is flooding the policy discourse on asylum and migration at the EU and global levels (as illustrated by the UN Global Compact for Migration and its objective 7 to ‘reduce vulnerabilities’ in migration, and the current focus at the EU level on the establishment of vulnerability assessment mech- anisms as part of asylum and border procedures as well as in resettlement programmes).

Yet, if not based on scientific data and analyses that provide a clear and non-stereotyped understanding of the vulnerabilities that are lived and experienced by migrants, such a policy objective runs the risk of failing to address vulnerabilities, exacerbating existing vulnerabilities or even producing new ones.

The overall objective of the VULNER project is to produce such scientific knowledge in ways that will assist states in identifying suitable strategies to assess the ‘vulnerabilities’ of migrants, to address their specific needs and to prevent stereotyped understandings of their lived experiences. The VULNER project also seeks to develop a broader, more thorough and more critical reflection on the increasing use of ‘vulnerability’ as a legal and policy standard that guides the development and the implementation of migration policies, including how it relates to border control considerations inherent in such policies.

This research report presents some of the intermediate research results of the VULNER project, based on the first phase of the project, which consisted of mapping out the vulnerability assessment mechanisms developed by state authorities in Belgium, including how they are implemented on the ground through the practices of the public servants in charge.

The following research questions are addressed: What do the relevant domestic legislation, case-law, policy documents, and administrative guidelines reveal about how “vulnerabilities” are being assessed and addressed in the countries under study? Do the relevant state and/or aid agencies have a legal duty to assess migrants’ vulnerabilities, and if yes, using which procedures, when and how? Following which legal and bureaucratic criteria? How do decision-makers (street-level bureaucrats) understand and perceive the ‘vulnerabilities’ of the migrants they meet on a daily basis? How do they address these ‘vulnerabilities’ through their everyday practices? What is their stance on existing legal requirements towards ‘vulnerable’ migrants? Which loopholes do they identify?

The approach followed for this report was an inductive one, in which we aimed to start by analysing existing state approaches towards ‘vulnerability’ as a legal and policy concept. We complemented our focus on the legal framework with interviews with decision-makers.

This is just the first phase of the data collection process. We are now conducting ethnographic fieldwork among informal and state-run migrant and refugee settlements, with the view to reach a more profound understanding of migrants’ own experiences of vulnerability. The objective is to document and reflect on how these experiences are shaped, and sometimes even produced, by the legal frameworks and state practices; how refugees and migrants adapt their behaviour to fit within existing vulnerability categories; and what coping and resilience strategies they develop. Our ultimate objective is to reflect upon thoroughly and from a critical perspective on the increasing use of ‘vulnerability’ as a standard that guides the development and implementation of migration policies at EU and global levels.

This report aims at reaching institutions, actors and organizations involved to distinct levels in the Belgian protection regime. It can be a useful tool to shed light on how vulnerabilities are concretely assessed and addressed throughout the asylum procedure. Raising awareness of the way through which vulnerability is evaluated and handled at each step of the asylum process is relevant to improve the overall efficiency of the system. Indeed, this would enable the authorities and the actors involved in the protection regime to learn their respective practices. Furthermore, this study comes at a time where more attention is paid to Belgian asylum and protection regime with the current proposal to establish a Belgian Migration Code. Therefore, this research could also be of interest to the experts in charge of this reform project as well as to the legislative power.

This report explores the asylum procedure in Belgium under the Law of 15 December 1980 regarding the entry, residence, settlement and removal of aliens (Aliens Act), the Law of 12 January 2007 regarding the reception of asylum seekers and other categories of aliens (Reception Act) as well as their implementation decrees.¹ It also deals with the specific “durable solution procedure” for minors, as enshrined in Articles 61/14 and 74/16 paragraph 2 of the Aliens Act. With the objective of assessing the implementing practices, administrative guidelines have been consulted, such as Ministerial decree laying down the code of ethics for staff members of reception facilities for asylum seekers or Ministerial Circular of 15 September 2005 on the residence of unaccompanied foreign minors. Moreover, guidelines and comments from the UNHCR have been consulted.² The combination of all these documents allows us to have a comprehensive understanding of the Belgian asylum system in light of the international protection regime, as well as to identify the challenges in terms of assessing and addressing vulnerabilities.

The fieldwork included sixty interviews with both asylum authorities and reception centres’ staff. The asylum authorities involved in the study were: Minors and Victims of Human Trafficking Special Unit (MINTEH) at the Immigration Office, Office of the General Commissioner for Refugees and Stateless persons (CGRS), Council of Alien Law Litigation (CALL), Labour Court, Fédasil Dispatching Unit, Fédasil Voluntary Return Service. Interviews have been conducted also with the staff (Directors, Deputy Directors, social workers and medical staff) of eight reception centres run by Fédasil (Federal Agency for the reception of asylum seekers) and the Red Cross. Moreover, one interview has been carried with the Director of Sürya (centre specialized for the victims of human trafficking) as well as with a social assistant of a Local Reception Initiative (LRI).

Those institutions and reception facilities have been selected for this study for three main reasons. Firstly, because they are key institutions that intervene at specific moments in the Belgian protection regime. Secondly, because these institutions are identifying and addressing vulnerability in their respective functions and daily practices (based sometimes on legal obligations to do so). Thirdly, because they are confronted with different groups of vulnerable people throughout the procedure (from a long period of time on daily basis for reception centres to a short hearing in front of the Council for Alien Law Litigation).

The legal research and the fieldwork have led to key findings:

• the partial/uncomprehensive scope of the vulnerable groups identified in the law;
• the diversity of approach taken by the actors in the field;
• the lack of a (consistent) communication between the different authorities and actors involved in the Belgian protection system.

The authorities and aid workers on the ground favour a case-by-case approach in identifying the more vulnerable profiles among the protection seekers. The groups and categories enshrined in the law are used as a warning bell by the actors on the field in order to pay special attention to certain applicants, to take into account their protection and reception needs and, eventually, to inform their decisions. In general, the case-by-case approach leads to a diffuse inclusive effect because the applicants’ needs are prospectively taken into adequate consideration. However, in light of the ample room for manoeuvre in the hands of the authorities and in the absence of substantial guidelines upstream as well as the obligation to state reasons of the decision downstream, there is a real risk of highly discretional decisions. Furthermore, in the same way a flexible approach could be inclusive, it then can also exclude anyone from the qualification of being vulnerable.

In light of the study conducted in Belgium, identifying and addressing vulnerabilities departing from the categories could prove to be problematic for three main reasons. Firstly, vulnerability is a multifaceted, complex concept susceptible to change and develop over time and space. In light of the fact that vulnerability is likely to be an intrinsic feature for all the protection seekers and that intersectionality is the rule, vulnerability should not be assessed and addressed in a logic of presence/absence, but rather along layers and degrees of vulnerabilities. Secondly, the categories identified in the law are not ultimately comprehensive. There are some groups that are not taken into account – above all (isolated) man and young adults (those who have just turned eighteen) – as well as some factors that are relevant for vulnerability assessment. Among others, the most recurring and relevant factors identified are the socio-cultural and socio-economic background as well as the consequences of the migratory path, the complexities of the asylum procedure and the hardships of the life in the reception centres. Thirdly, the vulnerabilities that are addressed on the ground seems to be the most “practical” ones. This leads to a more general reflection that the consideration and the “management” of vulnerability seems to be calibrated in line with what the State can do in light of economic and human resources at disposal as well as its political priorities.

The results of the research also show the lack of (consistent) communication between the different actors involved in the asylum procedure that makes the process of identifying, assessing and addressing vulnerability fragmented and potentially ineffective in the long run. Strikingly, as an example, the dialogue between the CGRS and the reception centres seems to be non-existent, even though both have clear obligations to assess and consider vulnerability. The rigid division of the tasks over the procedure and the distinct roles assigned to the different authorities and actors prevents common and fruitful channel of communication from being implemented. This lack of communication prevents a continuous, coherent consideration and a real follow-up of vulnerable profiles throughout the procedure.

This report also shows that vulnerability does not carry the same consequences for the different asylum bodies, or sometimes any consequences at all. This lead not only to a lack of effective consequences deriving from the notion of vulnerability on the ground (the concrete effects of qualifying an asylum seeker as vulnerable remains unclear), but also to a lack of consistency in the way it is assessed and considered within the procedure. The impact and role vulnerability can therefore remain very variable, with a large margin of appreciation for the decision-makers supposed to assess it on the ground.

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Footnotes

1 See Royal Decree of 8 October 1981 regarding the entry on the territory, residence, settlement and removal of aliens; Royal Decree of 11 July 2003 determining the procedure and functioning of the Office of the Commissioner General for Refugees and Stateless Persons; Royal Decree of 25 April 2007 on the modalities of the assessment of the individual situation of the reception beneficiary.
2 UNITED NATIONS HIGH COMMISSIONNER FOR REFUGEE, Background Note on the Safe Country Concept and Refugee Status, EC/SCP/68, 26 July 1991; UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, Comments of the Office of the United Nations High Commissioner for Refugees (UNHCR) on Bill 2548/003 amending the Law of 15 December 1980 on access to the territory, residence, establishment and removal of foreigners and the Law of 12 January 2007 on the reception of asylum seekers and certain categories of foreigners (hereinafter ‘Unicameral Bill [opinion]’), 4 October 2017; EXECUTIVE COMMITTEE OF THE HIGH COMMISSIONER’S PROGRAMME, General Conclusion on International Protection, No. 87 (L), 50th session, A/AC.96/928, 8 October 1999; UN COMMITTEE ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES (CMW), Joint general comment No. 4 of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return, 16 November 2017, CMW/C/GC/4-CRC/C/GC/23.