alternatives are considered prior to detention. 21 There is no automatic review of
detention, but the person can initiate a procedure before the court to challenge
detention and has access to legal aid. However, the court can only examine the
lawfulness of the detention, and not whether it is an appropriate measure.22 If released
from detention, stateless persons will not be granted a temporary residence permit and
will likely receive an order to leave the territory. They are not entitled to any protection,
except for access to urgent medical care. Before the court, they can claim financial
support equivalent to social assistance.23
14. It is welcome that the new Belgian Government pledged in 2020 to make alternatives to
detention more effective, limit the duration of detention and improve detention and
return procedures. Another pledge relates to the situation of a “very limited group of
people who, against their will, cannot return to their country of origin, even voluntarily,
such as some stateless persons”.24D
15. The Belgian Government should take steps to protect stateless people from arbitrary
detention, including introducing a mechanism to identify (risk of) statelessness during
the decision to detain, implementing a thorough assessment of vulnerability, 25 and
ensuring the appropriateness of alternative measures in each individual case.26 As noted
by the Committee in its General comment No. 4(2017) on the implementation of article
3 of the Convention in the context of article 22:
“Article 3 of the Convention […] should be without prejudice to article 16
(2) of the Convention, in particular where a person to be removed would
enjoy additional protection, under international instruments or national law,
not to be deported to a State where the person would face the risk of cruel,
inhuman or degrading treatment or punishment”.27
NANSEN, Demandeurs d'asile à la frontière: procédure à la frontière et détention, April 2018, available at:
https://www.nansen-refugee.be/wp-content/uploads/2018/12/demandeurs-asile-frontiere-procedure-frontieredetention.pdf. For more information, please visit the Statelessness Index on Belgium:
http://index.statelessness.eu/country/belgium.
22 Articles 71-74 of the Immigration Law.
23 For more information and sources, see Statelessness Index on Belgium:
http://index.statelessness.eu/country/belgium.
24 Accord de gouvernement, 30 September 2020, available at:
https://www.belgium.be/sites/default/files/Accord_de_gouvernement_2020.pdf.
25 Directive 2008/115/EC of the European Parliament and of the Council on common standards and procedures in
Member States for returning illegally staying third-country nationals (EU Returns Directive), Article16(3).
26 ICCPR, Article 9; UN General Assembly, Protection of migrants: resolution adopted by the General Assembly, 17
March 2009, A/RES/63/184, para. 9; UNHCR, Handbook on Protection of Stateless Persons, 2014, para. 113.
27 UN Committee against Torture, General comment No. 4(2017) on the implementation of article 3 of the
Convention in the context of article 22, 4 September 2018, para. 26.
21
5
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents