Belgium has come under criticism from the international community for their return to the practice of detaining accompanied minors in these ill-equipped facilities. The Brussels International Center calls upon the Belgian authorities to use their influence and opt for more comprehensive measures to meet the conditions for compliance.
In August 2018 the “127 bis centre" - a Belgian closed centre for foreigners awaiting expulsion - set up new units to house families with children waiting for an administrative decision to be made. This seems to be a return to an old practice ended over 10 years ago when Belgium stopped detaining families with children. This was following three condemnations of inhuman and degrading treatment of detainees by the European Human Rights Court (EHRC).[1] The EHRC concluded that their legal status as "illegal foreigners" should always be subordinate to "extreme vulnerable situation[s]” of those children and urged to prioritize the protection of their needs and rights, as defined by the Convention on the Rights of the Child. The Court equally stated that the accompanied or unaccompanied status of children does not in any way affect the required protection level that the Belgian authorities are obligated to respect. As the current closed centres are designed for adults and have not been adequately adapted for children, detention children in those centres would violate their rights and constitutes inhuman and degrading treatment.[2]
Since August 2018, 8 families and 19 children have been placed in the 127 bis center, located just next to the Brussels Airport. The ‘familial units’ are theoretically a last resort[3] for families who have not yet voluntarily left the country but have not been placed in return housing (private houses or apartments) either. Although, technically these families have the right to resort to “return housing” alternatives, the new Belgian decree specifies that some families could be directly placed into detention centres if there is reason to believe (without further definition or detail) that one of the family members is a “danger to public security”.
Yet, the royal decree that made this detention possible[4] theoretically allows a 28 days maximum duration of detention (14 days, once renewable) under the condition that the facility is adapted to the children’s needs, without further defining what those needs consist of. The decree also states that detention cannot be renewed in cases where psychological or physical harm has come to the children. This does not, however, provide any obligation in case of renewal to have a pediatric expert assessing any potential risks of such harm.
During the fall of 2018, a Serbian woman and her four children - waiting for a decision to be made about their case - were detained for 28 days before being transferred to a return housing facility. However, according to the ordinary administrative process, families with children should be placed in return housing in the first place and not in a closed centre. This family subsequently fled from that return house, was placed again in the closed centre after their return and was deported to their sending country after almost 50 days of detention. This example demonstrates that the duration limit of detention can clearly be exceeded in practice.
Another example dates from September 2018 and pertains to the renewal of a two weeks detention in the 127 bis centre of a woman and her five children. The renewal was cancelled the third day of their detention because of the “psychological impact” on some of the children. Although the royal decree does allow for a maximum detention of 28 days, it equally stresses that this can only apply under the strict condition that the facility is adapted to the children’s needs while at the same time failing to define what those needs consist of.
Since 2008, accounts of “disastrous impacts” of detention upon the children’s developmental process due to general stress, feelings of injustice and desperation reached the surface. [5] The recent Myria report (2018) raised equal concerns related to noise pollutions, “feeling of detention” and lack of infrastructure to address and resolve these situations.[6] Among the issues regarding the detention of children are others: the presence of barbed wires, uniformed staff, fix daily scheduled groups regime, and - due to the impossibility to freely circulate - the lack of daylight, and so on. [7] These conditions could have long-term and irreversible consequences over the psychological health of children. Moreover, the European Human Rights Court concluded to the “inadequacy” [8] of the 127 bis closed centre for hosting children because of their extremely vulnerable situation, and reaffirmed that this extreme vulnerability must predominate over their administrative status as illegal foreigners.[9]
It is argued that the new Belgian decree is - despite the historical Belgian international engagement in the protection of Children's rights, such as in the fight against child soldiers practices in contexts of armed conflicts [10] - not in line with the general international tendency to deepen the protection of human rights, and the rights of children in particular.
The observations by the Children Rights Committee in 2017 concisely gives voice to the problems that these practices depict: “Children should never be detained because of their parents’ migratory status, and States should quickly and without delay put an end to the detention of children for migration reasons and should erase this practice. All practices of the detention of children due to their migration status should be prohibited by law and this prohibition should be entirely implemented into practice.” [11]
The current practices have been criticized by a wide range of international organizations, scientific experts, political committees, and NGOs, based on the psychological effects of detention on children placed into those centres. Therefore, by strengthening collaboration of the Belgian authorities with some accredited associations or institutions, such as The Red Cross, the Belgian Migration Federal Center (Fedasil) or Caritas International, which have the opportunity to visit these centres, the enhancement of the Belgian migration and detention policies in accordance with international law would be reinforced. The results of these observations should be used to promote the respect for detained families’ fundamental rights, and in particular children’s rights when waiting for expulsion. As Belgium has always been a leader on the international scene in terms of promotion and implementation of International Humanitarian Law, [12] it would gain influence and credibility by conforming its practice to international law.
Therefore, the Brussels International Center calls upon the Belgian authorities to use their influence and opt for more comprehensive measures to meet the conditions for compliance.
Recommendations:
-
The royal decree defining the legal procedure and status of detained families does not provide any specific disposition to ensure the international and European basic rights of the child. The Belgian authorities, therefore, have yet to design or implement the necessary independent prevention mechanisms. In order for Belgium to strengthen its national implementation of the fundamental rights of the child, it has to design - in cooperation with independent institutions and experts - a mechanism which monitors the closed centers to prevent inhuman or degrading conditions [as recommended by the Additional Protocol to the International Convention against Torture and other inhuman and degrading treatments, ratified by Belgium in July 2018]
-
Political authorities should prioritize the best interest of children within every decision linked to social protection or legal, judicial and administrative issues. It appears to be essential for the Belgian Secretary of State for Migration and Asylum to develop alternative facilities to detainees with children, such as prioritising the “return housing” facility, which was created in 2008 as the main alternative to the closed centers for those types of situations. By reinforcing human and financial means dedicated to manage these facilities, Belgium would demonstrate compliance with the international legal standards of child protection by taking active and efficient reasonable measures, as defined by the Convention on the Rights of the Child.