Over the last few years, procedures to access international protection in Belgium have become more complex. Quality information and support are becoming increasingly difficult to obtain. Both lawyers and civil society are under heavy pressure due to state budget cuts, while times to appeal decisions have been shortened. In this context, too many men, women and children in need of international protection stay stranded. This is why in 2017, a group of lawyers and academics with expertise in asylum, human rights and migration law set up NANSEN.
NANSEN is a Brussels-based NGO. We provide individual support (legal or multidisciplinary advice, analysis of the procedure, possible intervention before national or international asylum instances), carry out monitoring and reporting on international protection standards (including in detention) and support capacity building and enhanced sharing of information by connecting legal and non-legal professionals.
One of NANSEN’s main streams of work is the monitoring of protection standards in detention. The Belgian migration detention system and practice is characterized by structural long-standing deficiencies including access to quality legal assistance, due to 2016 legal aid reforms and 2018 enlargement of detention grounds and shortening of procedural and appeal delays. As a consequence, NANSEN is identifying an increased risk of arbitrary detention – including among individuals at risk of statelessness, because of insufficient individual assessment, inadequate protection against refoulement as well as an insufficient detection process of vulnerable profiles in detention and lacking consideration for vulnerabilities.
Main issues faced by stateless people in Belgium
Stateless people in Belgium are no exception in this uneasy protection landscape. As was reported by UNHCR and on the ENS blog, a major concern for them (approximatively 100 individuals a year) includes shortcomings in the statelessness determination procedure such as delays, lack of uniformity in the decision-making process and lack of expertise among judges, lawyers and civil servants.
An example of this is the diverging jurisprudence on statelessness determination of Palestinians. Until recently people who could demonstrate their Palestinian origin and show that they did not acquire the nationality of the country they were previously residing in were recognized as stateless. In the north half of the country however jurisprudence has shifted. The Courts of Appeal in Ghent, Brussels and Antwerp have ruled that Palestine can be considered a state for the purposes of Art. 1 of the 1954 Convention, and that the applicants did not succeed in demonstrating they are not considered as nationals by this state. These rulings leave a lot of unanswered questions and do not seem consistent with UNHCR’s interpretation of a stateless person. Challenges are pending against these judgments at the Court of Cassation – the highest civil court.
The most important problem in the current mechanism is the lack of an automatic grant of a residence permit following a positive recognition of statelessness. This leads to a major protection gap, because it precludes access to rights under the 1954 Convention. Similarly, people applying to be recognised as stateless in Belgium do not have a legal status or a temporary residence permit for the duration of the procedure. Registration of stateless people in the civil registries is also often inadequate, resulting in difficulties for stateless individuals to access their rights.
These deficiencies in the statelessness determination procedure and in registration result in lack of identification of statelessness, potentially leading to a significant number of stateless people ending up in detention. Due to lack of expertise among legal practitioners and lack of data, there’s no precise number of people of concern in detention.
In 2014, the Belgian government committed to simplify and centralize the SDP and offer a residence permit to recognised stateless persons. While some progress has been made on centralizing the SDP, no progress has been made regarding the granting of residence permits to recognised stateless persons. The Parliament is, however, currently in the accelerated process of reviewing a new legislative proposal introduced in January 2019, which aims to introduce a procedure for issuing residence permits to people recognised as stateless under Belgium’s existing statelessness determination procedure. The new Bill will now enable stateless people to enjoy the rights under the 1954 Statelessness Convention that are subject to a residence condition. The Bill also aims to explicitly grant recognised stateless people the possibility of family reunification and also helps facilitate it (by providing less stringent conditions the first year).
The draft legislation is broadly positive, but there are a few concerns around cases in which a residence permit is to be considered unnecessary. To assist the Home Affairs Committee of the Belgian Federal Parliament dealing with the proposal, NANSEN and ENS have submitted a joint submission (available here in French), which strongly welcomes the proposal, and sets out a series of recommendations for strengthening the Bill, to ensure it is in line with international standards and best practice on statelessness specific protection regimes.
The draft legislation provides for the introduction of a temporary residence permit which covers the duration of the procedure to apply for a residence permit at the 'Office des Étrangers'. However, nothing comparable is foreseen for the duration of the statelessness determination procedure by the civil courts. ENS and NANSEN recommend that a temporary residence permit be issued to applicants for statelessness throughout the determination procedure, as soon as the application for a determination of statelessness is filed before the civil courts. Beyond this major point of concern, ENS and NANSEN made technical recommendations to make sure that stateless people can benefit from the facilitated family reunification regime for a full year after the attribution of a residence permit. ENS and NANSEN also made two recommendations directed at the framework of exclusion set by the draft legislation, with a view of securing that the national law be fully in line with the 1954 Convention and its interpretation as set by UNHCR. Procedural safeguards such as the right to a hearing, the effective access to quality legal assistance and access to an effective remedy were also highlighted in the joint submission.
Joining forces to protect stateless persons in Belgium
By joining ENS at the start of 2019, NANSEN now has the opportunity to access training opportunities, exchange information, have easy access to a pool of experts and to access future opportunities to collaborate with the Secretariat and other members. We plan to step up our own insight and capacity to identify individuals at risk of statelessness. This will be included in three main areas of our activities: direct provision of expert legal support, capacity building for legal practitioners, as well as advocacy. We also believe that the ENS Secretariat and fellow ENS members can be instrumental in supporting NANSEN engaging in strategic litigation, where extensive insight on the current legal challenges will be decisive as well as careful assessment of strategic litigation opportunities.
Because 2019 will see both Federal, European and Regional elections, there will be no shortage of advocacy opportunities on migration and human rights issues, so watch this space.