Right to family life in jeopardy 

The central question of this report is to what extent the right to family life and the best interests of the child are adequately protected for persons who are being held in detention awaiting their removal. After the opening of the family units in the closed center 127bis this summer Myria made a state of affairs and recalled the internatinonal rules against the detention of children and the alternatives that exist for the detention of minors. Myria points to a recent decision by the United Nations Committee on the Rights of the Child on the detention of a family and recalls the importance of compliance with international obligations taken by Belgium. Myria also shares the findings of his recent visits to the cloased family units.  

In terms of the alternatives to detention, Myria notes that, notwithstanding the fact that families are released, half of the families that are forced to be removed from a 'return home' are effectively removed and Myria believes that there should be more investment in these alternatives. 

Myria also pays attention to another vulnerable group: those of pregnant women or the ones that recently delivered, in the absence of clear regulations they don't receive adequate protection against detention and removal.  

Myria also repeats his criticism on the law against the reconnaissance, which, among other things, gives too many discretionary powers to municipal officials and thus far exceeds its goal. Every child has the right to know his/her double decent and to enjoy any rights arising from it. In case of detention, Myria recommends that the parents and children in question enjoy protection against expulsion during the entire procedure (confirmation of the descent).  

Regarding family reunification for persons in detention, Myria overcomes the legal and practical obstacles which concerns the filling of an application from a closed center and recommends that the regulations will be amended to explicitly provide the possibilty for a foreign national held in a closed center to submit an application for family reunifications (as well as its submission modalities). 

Figures

In 2017 there were 45,601 return decisions. 42% of them were the result of an administrative arrest. It is also pointed out that 11% of these decisions were delivered to EU citizens. 

About half of the administrative arrests followed the issuing of an order to leave the territory without deprivation of liberty and 12% led to detention. We note that 30% of the total number of administrative arrests are related to transit migration.  

Myria records an increase of 13% in the number of detentions in closed centers between 2016 and 2017. People in closed centers largely remain people who reside irregularly on the territory, even when there is a clear increase in the proportion of people in a closed center who are retained detained after a return tot the border. Regarding return, there is also a marked increase in the number of redemptions, a decrease in voluntary assisted return and a very slight decrease in repartriations (both for repatriation to the country of origin and for Dublin acquisitions and bilateral take-backs). The most important nationalities among the repatriated persons in 2017 are Albanians, Moroccans and Romanians. 

Myria also has figures for the past five years (2013-2017) on inspections of the General Inspection of the Federal Police and the Local Police (AIG) on removals. In 2017, there were a total of 103 controls, which in total involved 282 people. Myria in particular noted a decrease of 41% between 2013 and 2017 in the number of inspections carried out by the AIG by the airport police at Brussels Airport (where the majority of the removal attempts take place, 7.901 in 2017).

Recent developments

Myria notes that there is a strong emphasis on return at European level. A proposal to amend the Return Directive was drafted by the European Commission in September 2018, but this proposal raises questions in terms of the potential impact on the fundamental rights of foreign nationals. 

In Belgium, the news was dominated by the issue of transmigration, the detention of children in closed centers and by the question of the investigation of the risk of inhuman and degrading treatment in case of return and in the absence of an asylum application (as guaranteed by article 3 of the European Convention on Human Rights). 

Myria examines the details and summarizes in his report the important legislative changes with regard to detention and removals together with the developments in the relevant case law at Belgian and European level.