Defence for Children International (DCI) against Belgium
Complaint No. 69/2011
(Adopted by the Committee of Ministers on 11 June 2013
at the 1173rd meeting of the Ministers’ Deputies)
The Committee of Ministers,1
Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;
Taking into consideration the complaint lodged on 21 June 2011 by the Defence for Children International (DCI) against Belgium;
Having regard to the report transmitted by the European Committee of Social Rights containing its decision on the merits, in which it concluded:
- unanimously that there is a violation of Article 17 of the Charter
i. Applicability of Article 17 to the persons concerned by the complaint
The restriction of the personal scope included in the Appendix should not be read in such a way as to deprive foreigners coming within the category of unlawfully present migrants of the protection of the most basic rights enshrined in the Charter or to impair their fundamental rights such as the right to life or to physical integrity or the right to human dignity (Defence for Children International v. the Netherlands, Complaint No. 47/2008, decision on the merits of 20 October 2009, § 19; International Federation of Human Rights Leagues v. France, Complaint No. 14/2003, decision on the merits of 8 September 2004, §§ 30 and 31).
In the light of the mandatory, universally recognised requirement to protect all children – requirement reinforced by the fact that the United Nations Convention on the Rights of the Child is one of the most ratified treaties at world level, paragraph 1 of the Appendix should not be interpreted in such a way as to expose foreign minors unlawfully present in a country to serious impairments of their fundamental rights on account of a failure to guarantee the social rights enshrined in the Charter.
However, although the restriction of personal scope contained in the Appendix does not prevent the application of the Charter’s provisions to unlawfully present foreign migrants (including accompanied or unaccompanied minors) in certain cases and under certain circumstances, an application of this kind is entirely exceptional. It would in particular be justified solely in the event that excluding unlawfully present foreigners from the protection afforded by the Charter would have seriously detrimental consequences for their fundamental rights (such as the right to life, to the preservation of human dignity, to psychological and physical integrity and to health) and would consequently place the foreigners in question in an unacceptable situation, regarding the enjoyment of these rights, as compared with the situation of nationals and of lawfully resident foreigners.
Since it is exceptional to apply the rights enshrined in the Charter to persons not literally included in the Charter’s scope under paragraph 1 of the Appendix, this category of foreigners (which includes accompanied or unaccompanied minors not lawfully present in a country) is not covered by all the provisions of the Charter, but solely by those provisions whose fundamental purpose is closely linked to the requirement to secure the most fundamental human rights and to safeguard the persons concerned by the provision in question from serious threats to the enjoyment of those rights.
Moreover, the risk of impairing fundamental rights is all the more likely where children – a fortiori migrant children unlawfully present in a country – are at stake. This is due to their condition as “children” and to their specific situation as “unlawful” migrants, combining vulnerability and limited autonomy. As a result, in particular, of their lack of autonomy children cannot be held genuinely responsible for their place of residence. Children are not able to decide themselves whether to stay or to leave. Furthermore, if they are unaccompanied, their situation becomes even more vulnerable and should be managed entirely by the State, which has a duty to care for children living within its territory and not to deprive them of the most basic protection on account of their “unlawful” migration status.
Consequently, children and young persons concerned by this complaint come within the scope of Article 17 of the Charter.
Article 17 concerns the aid to be provided by the State where the minor is unaccompanied or if the parents are unable to provide such aid. The failure to apply paragraph 1 (b) of Article 17, would obviously expose a number of children and young persons to serious risks to their lives or physical integrity.
The only substantive complaint of DCI relates to the lack of reception places, which allegedly renders ineffective any access to accommodation and all the other measures providing for legal, economic, medical and social protection.
In connection with illegally resident accompanied minors, such families, with their children, have no longer been taken in since 2009 because of network saturation. In 2011, the Federal Agency for the Reception of Asylum Seekers (FEDASIL) received 43 court orders to provide accommodation for families and the Federal Ombudsmen addressed a series of recommendations to FEDASIL. According to the DCI, 774 families received a negative response to their applications for accommodation between January 2011 and April 2012. These decisions concerned 3 011 persons (the DCI did not know how many children were involved). In 2011, 553 families were refused accommodation; the latter comprised 901 adults and 1 242 minors. The government provides no data, but acknowledges that they were unable to find an alternative accommodation solution for these families.
Where unaccompanied foreign minors are concerned, statistics on the number of such minors seem to be approximate, varying widely according to the source of information used. According to the DCI, Guardianship Department statistics suggest that 461 such minors were refused accommodation in 2011 as compared with 258 in 2010. On the other hand, when taking into consideration the number of arrivals of unaccompanied foreign minors, this figure is much higher. According to the DCI, over 1 300 young people were not accommodated in appropriate structures. There are no data as to the number of asylum seekers among non-accommodated unaccompanied foreign minors, but it emerges from the complaint that such minors are prioritised for reception facilities. The government does not supply statistics on the number of such minors who failed to obtain a reception place.
The DCI estimates the number of unaccompanied foreign minors put up in hotels at 668, while the government estimates 166 such minors in hotels at 12 March 2012.
Immediate assistance is essential and allows for the assessment of the material needs of young people, the need for medical or psychological care in order to set up a child support plan (Guiding principles on extreme poverty and human rights, submitted by the Special Rapporteur on Extreme Poverty and Human Rights, Magdalena Sepúlveda Carmona and adopted by the United Nations Human Rights Council on 27 September 2012, §§ 32 and 34)
In the light of the above, the fact that the government has, since 2009, no longer guaranteed accompanied foreign minors unlawfully present in the country any form of accommodation in reception centres (neither through the FEDASIL network nor through other alternative solutions) is in breach of Article 17§1 of the Charter. The persistent failure to accommodate these minors shows, in particular, that the government has not taken the necessary and appropriate measures to guarantee the minors in question the care and assistance they need and to protect them from negligence, violence or exploitation, thereby posing a serious threat to the enjoyment of their most basic rights, such as the rights to life, to psychological and physical integrity and to respect for human dignity. Similarly, the fact that at least 461 unaccompanied foreign minors were not accommodated in 2011 and the problems posed by inappropriate accommodation in hotels lead to the conclusion that the government failed to take sufficient measures to guarantee non-asylum-seeking, unaccompanied foreign minors the care and assistance they need, thereby exposing a large number of children and young persons to serious risks for their lives and health.
- unanimously that there is a violation of Article 7§10 of the Charter
i. Applicability of Article 7§10 to the persons concerned by the complaint
Article 7§10 guarantees to children and young persons a special protection against the physical and moral hazards to which they are exposed. Above all regarding protection against physical hazards, this is clearly a very important requirement to States Parties so as to ensure that certain fundamental rights are effectively guaranteed, in particular the right to life and to physical integrity. For this reason, not considering States Parties to be bound to comply with this obligation in the case of foreign minors who are in a country unlawfully would therefore mean not guaranteeing their fundamental rights and exposing the children and young persons in question to serious impairments of their rights to life, health and psychological and physical integrity.
Consequently, the children and young persons concerned by this complaint come within the scope of Article 7§10 of the Charter.
Pursuant to paragraph 10 of Article 7, States undertook to protect children not only against the risks and forms of exploitation that result directly or indirectly from their work, but also against all forms of exploitation. In particular, States must prohibit the use of children in forms of exploitation resulting from trafficking or “being on the street, such as ... domestic exploitation, begging, pickpocketing, servitude or the removal of organs, and ... take measures to prevent and assist street children” (Conclusions 2006, Article 7§10, Moldova).
In the light of the available data and the government’s submissions taken into consideration above to assess the alleged violation of Article 17, the government has failed to find a care solution for a significant number of foreign minors unlawfully present in the country (accompanied or unaccompanied). According to the ECPAT network’s observation “sexual exploitation of minors and child trafficking are significant problems in Belgium and are priorities in the Federal Plan for Security and Prison Policy. Child trafficking is closely linked with the problem of unaccompanied minors who are in Belgium and do not receive sufficient protection”. Information was requested from the government on the incidence of sexual exploitation and trafficking of children, including those not lawfully present, and reserved its position on this point in the meantime (Conclusions 2001, Belgium).
The available data are not sufficient to conclude that exploitation of begging is a widespread phenomenon in Belgium or to show that there are close links between begging, trafficking or sexual exploitation of minors in Belgium and the reception facilities’ incapacity to care for a large proportion of the foreign minors unlawfully present in the country, or that these phenomena are substantially enhanced as a result of this incapacity.
Nonetheless, the Belgian reception facilities’ lasting incapacity to care for a significant proportion of the unlawfully present minors (whether or not accompanied by their families) has the effect of exposing the children and young persons in question to very serious physical and moral hazards, resulting from the lack of reception homes and from life on the street, which can even consist in trafficking, exploitation of begging and sexual exploitation (Conclusions 2006, Article 7§10, Moldova). The important and persistent failure to care for foreign minors unlawfully present in the country therefore shows that the government has not taken the necessary measures to guarantee these minors the special protection against physical and moral hazards required by Article 7§10, thereby causing a serious threat to their enjoyment of the most basic rights, such as the right to life, to psychological and physical integrity and to respect for human dignity.
- by 13 votes to 1, that there is a violation of Article 11 §§1 and 3 of the Charter
i. Applicability of Article 11 to the persons concerned by the complaint
Article 11, paragraph 1 requires States Parties to take appropriate measures to remove the causes of ill health and this means, inter alia, that States must ensure that all individuals have the right of access to health care and that the health system must be accessible to the entire population.
In this connection, health care is a prerequisite for the preservation of human dignity, which is a fundamental value at the core of positive European human rights law – whether under the European Social Charter or the European Convention on Human Rights (International Federation of Human Rights Leagues v. France, Complaint No. 14/2003, decision on the merits of 8 September 2004, § 31). For this reason, teleological interpretation of the personal scope of the Charter in respect of Article 11§1 has already been applied, noting that the States Parties “have guaranteed to foreigners not covered by the Charter rights identical to or inseparable from those of the Charter by ratifying human rights treaties – in particular the European Convention of Human Rights – or by adopting domestic rules whether constitutional, legislative or otherwise without distinguishing between persons referred to explicitly in the Appendix and other non-nationals. In so doing, the Parties have undertaken these obligations.” (Conclusions 2004, Statement of interpretation of Article 11, p. 10).
In the light of the above, Article 11 is applicable to the persons concerned by this complaint. Not considering the States Parties to be bound to comply with the requirement to protect health in the case of foreign minors unlawfully present in their territory and, in particular, with the requirement to ensure access to health care would mean not securing their right to the preservation of human dignity and exposing the children and young persons concerned to serious threats to their lives and physical integrity.
With regard to the right of access to health care (Article 11§1), it is noted that the total lack – since 2009 – of reception facilities for accompanied foreign minors and the partial lack of such facilities for unaccompanied foreign minors, leading some of them to live in the street, makes it difficult for foreign minors unlawfully in the country to access the health system. This is because the FEDASIL reception and assistance network has reached saturation point and because it is hard for the persons concerned to prove that they have fixed addresses or de facto addresses.
With regard to Article 11§3, the complainant organisation does not provide any detailed information on specific cases of shortcomings by the State in the removal of the causes of ill health among the minors covered by this complaint or specific cases of shortcomings in preventing epidemic or endemic diseases. Nonetheless, the lasting incapacity of the reception facilities and the fact that, consequently, a number of the minors in question (particularly those accompanied by their families) have been consistently forced into life on the streets exposes these minors to increased threats to their health and their physical integrity, which are the result in particular of a lack of housing or foster homes. In this connection, providing foreign minors with housing and foster homes is a minimum prerequisite for attempting to remove the causes of ill health among these minors (including epidemic, endemic or other diseases) and the State therefore has failed to meet its obligations as far as the adoption of this minimum prerequisite is concerned.
- by 11 votes to 3, that there is no violation of Article 13 of the Charter
i. Applicability of Article 13 to the persons concerned by the complaint
The importance of Article 13 concerning the right to social and medical assistance from the angle of effectively securing the most fundamental human rights, in particular the rights to life, physical integrity and the preservation of human dignity is noted. For this reason, any “legislation or practice which denies entitlement to medical assistance to foreign nationals, within the territory of a State Party, even if they are there illegally, is contrary to the Charter” (International Federation of Human Rights Leagues v. France, Complaint No. 14/2003, decision on the merits of 8 September 2004, § 32).
In the case of exceptional application of the provisions of the Charter, extending beyond the restriction set out in paragraph 1 of the Appendix, Article 13 can apply to the persons concerned by this application (foreign minors present unlawfully) only insofar as any shortcomings in the implementation of the obligations set out in the article are likely to impair the most fundamental rights of the persons in question such as the rights to life, psychological and physical integrity and preservation of human dignity.
The minors concerned by this complaint fall solely within the scope of Article 13, in particular concerning the right to appropriate medical assistance.
Pursuant to Article 13 of the Charter the right of migrant minors unlawfully in a country have the right to receive urgent medical assistance or health care extending beyond urgent medical assistance including primary and secondary care, as well as psychological assistance. Concerning the access to the health system and to health care in general, reference is made to Article 11.
In Belgium, unlawfully present migrant minors are, in principle, entitled to medical assistance on the same basis as the country’s nationals. As can be seen from the parties’ arguments and the observations of the Platform for International Co-operation on Undocumented Migrants (PICUM), in practice this assistance essentially takes the form of the right to “urgent medical assistance”, which is provided by public social welfare centres. In its observations, PICUM explains that the concept of “urgent medical assistance” is not clearly defined, which gives rise to differing interpretations. In the light of the data at disposal and of the actual implementation of “urgent medical assistance”, even though the title of the legislation (“Urgent Medical Assistance”) is ambiguous, it covers not only life-threatening medical situations but also curative and preventative assistance, as well as essential psychological assistance.
In view of the existence of a form of medical assistance guaranteed by law, which operates effectively in practice, and of the lack of precise data showing serious shortcomings in this system of assistance in respect of the persons concerned by this complaint, the situation does not constitute a violation of Article 13 of the Charter. The situation does not indicate that the Belgian State has failed to take appropriate measures to provide foreign migrants unlawfully in the country with urgent medical assistance or primary and secondary health care, or essential psychological assistance, thereby impairing their rights to life, physical integrity and preservation of human dignity.
- unanimously that Article 30 of the Charter does not apply in the instant case
i. Applicability of Article 30 to the persons concerned by the complaint
Article 30 essentially requires States Parties to adopt an overall and co-ordinated approach consisting of measures to promote access to social rights, in particular employment, housing, training, education, culture and social and medical assistance (Conclusions 2003, France, statement of interpretation on Article 30).
Living in poverty and suffering social exclusion obviously undermine human dignity (Conclusions 2005, Statement of interpretation on Article 30). Nevertheless, the overall and co-ordinated approach provided for in Article 30 involves the adoption of positive measures entailing economic, social and cultural promotion which are required of States Parties under a series of Charter provisions, most of which cannot be regarded as being applicable to persons who are not mentioned in paragraph 1 of the Appendix, such as unlawfully present foreign minors. This is because these are not provisions whose fundamental purpose is closely related to the requirement to secure the most fundamental human rights and to safeguard the persons covered by the provisions in question from serious threats to the enjoyment of those rights.
For this reason, the Committee does not consider that the range of economic, social and cultural measures to be taken under an overall, co-ordinated approach to secure the right to protection against poverty and social exclusion can be deemed to be an obligation on States Parties applicable in respect of foreign minors who are in a country unlawfully.
- unanimously that Article E of the Charter does not apply in the instant case
i. Applicability of Article E to the persons concerned by the complaint
The prohibition of discrimination enshrined in Article E of the Charter establishes an obligation to ensure that any individuals or groups falling within the scope ratione personae of the Charter equally enjoy the rights of the Charter (Defence for Children International v. the Netherlands, Complaint No. 47/2008, decision on the merits of 20 October 2009, §§ 72-73).
Furthermore, the principle of equality, which results from the prohibition of discrimination, means treating equals equally and unequals unequally (Autism-Europe v. France, Complaint No. 13/2002, decision on the merits of 4 November 2003, § 52). It follows from the above that States Parties may treat individuals differently depending on whether or not they are lawfully on their territory and that they may also treat foreign minors unlawfully present differently depending on whether or not they are accompanied or whether or not they are asylum seekers.
Having regard to the document distributed at the request of the delegation of Belgium at the meeting of the Rapporteur Group on Social and Health Questions (GR-SOC) of 9 April 2013,
1. takes note of the statement made by the respondent government and the information it has communicated on the follow-up to the decision of the European Committee of Social Rights and welcomes the measures taken by the authorities of Belgium with a view to bringing the situation into conformity with the Charter (cf. Appendix to the present resolution);
2. looks forward to Belgium reporting, at the time of the submission of the next report concerning the relevant provisions of the European Social Charter, on measures to ensure that the situation has been brought into conformity over the long term.
Appendix to Resolution CM/ResChS(2013)11
Memorandum submitted by the Representative of Belgium at the GR-SOC meeting of 9 April 2013
In this report, the Committee notes that the rights enshrined in Articles 17§1, 7§10 and 11§§1 and 3 of the Charter are not effectively guaranteed. In the instant case therefore, it was not the Committee’s aim to identify any shortcoming with regard to the transposition of the Charter into Belgian law, but to ascertain whether these rights were effectively guaranteed.
The Committee decided, in view of the fact that unaccompanied foreign minors and foreign minors residing in Belgium with their parents (hereinafter “illegally resident families”) do not always have access to reception facilities, that there were violations of the right to social, legal and economic protection under Article 17 of the Charter, the right of children and young persons to protection against the physical and mental dangers to which they may be exposed, particularly against those resulting directly or indirectly from their work, under Article 7§10, and the right of children to protection of their health, under Article 11 §§1 and 3.
In this memorandum, you will find the arguments that Belgium wishes to put forward against the Committee’s findings, particularly the measures taken to remedy the alleged infringements.
Above all else, it should be noted that DCI seems to consider in its complaint that all young people who declare themselves to be minors are in need of reception facilities and a guardian. However, the actual situation is more complex and calls for a more subtle approach taking account of the varying profiles of young people in Belgium and what they expect from the Belgian authorities.
Unaccompanied foreign minors not seeking asylum do indeed have several different profiles, involving differing problems and differing expectations vis-à-vis the authorities. Some do present themselves to the authorities with the chief aim of being admitted to a reception centre and having a guardian assigned to them but others, for various reasons, do not ask for this kind of support. This may be because the young person has a network of acquaintances in Belgium, a different lifestyle (particularly among the Roma) or a desire to travel to another European country (a young person in transit).
The authorities also have to contend with a lack of information about these people. They give little information about themselves to the police, associations and lawyers who register them. This lack of information (about their personal details, their multiple identities and whether or not they are with their parents) makes it difficult, particularly if they are not invited to do so by the authorities, for their situation to be followed up in terms of access to reception facilities or, where they are unaccompanied minors, the appointment of a guardian.
This highly complex situation also explains the difficulty of obtaining accurate figures concerning the number of unaccompanied foreign minors in Belgium. If young people fail to respond to the authorities’ requests, it is very difficult and, in fact, often impossible, for it to be established that a young person is not accompanied by a person exercising parental responsibility.
It is essential therefore for the Committee of Ministers to take these factors into consideration when determining what its approach will be.
1. Reception of unaccompanied foreign minors
First of all it should be pointed out that what we are talking about here is minors who have not requested asylum, as unaccompanied minors seeking asylum are allocated a place through the network of the FEDASIL (the Federal Agency for the Reception of Asylum Seekers).
It is true that because of the accommodation crisis, FEDASIL has not been able to find solutions for all unaccompanied minors not seeking asylum. The Agency does not have any accurate figures on this because it is impossible to determine how many unaccompanied minors not seeking asylum were in Belgium and could therefore have requested practical assistance from the Agency during this period.
Despite the constant increase in the number of places, it was impossible to offer all the unaccompanied foreign minors who approached FEDASIL satisfactory accommodation. As a result FEDASIL had no choice but to give priority to young people who had applied for asylum and only thereafter to provide facilities for the most vulnerable of those who had not applied for asylum. Consequently, FEDASIL was forced to accommodate unaccompanied foreign minors in rooms usually reserved for adults in federal centres or hotels.
However, various measures taken in 2012 by both FEDASIL and the Belgian State have fulfilled their purpose, which was to ensure that the reception facilities for unaccompanied foreign minors would no longer be saturated.
Below is an overview of the latest measures introduced to achieve this result.
1.1 Reduction in the number of asylum requests, acceleration of the procedure set up by the Office of the General Commissioner on Refugees and Stateless Persons (CGRA)
Figures from the Aliens Office show that 1 530 asylum applications were filed in 2012 by persons declaring themselves to be minors, which is lower than the figure for 2011 (2 040 applications). This change has had a positive influence on the figures for the occupation of reception centres, affecting the first, second and third stage of the reception process for unaccompanied minors.
Furthermore, processing of asylum applications by the CGRA speeded up in 2012 meaning that larger numbers of people have been able to leave the reception network.
1.2 Increase in the number of reception places for unaccompanied foreign minors
The Agency points out that the accommodation of unaccompanied foreign minors in hotels ceased in December 2012.
In May 2012, FEDASIL opened a third Observation and Guidance Centre (COO) at the Sugny reception centre, which currently provides 15 places for unaccompanied foreign minors not requesting asylum. In principle, young people reside at Sugny for no more than four months. This time is necessary to ascertain whether they can be transferred to an ordinary FEDASIL reception centre or whether they need specialised reception arrangements as part of a youth assistance programme.
Winter plan (from 24 December 2012 to 31 March 2013)
As part of the winter programme set up by the government for the reception of vulnerable people, FEDASIL undertook to reserve 200 places for unaccompanied foreign minors over the winter months. 100 places were provided through FEDASIL’s ordinary network and the other 100 could be made available very quickly thanks to its co-operation with reception partners or by means of temporary over-occupation in existing centres.
The French Community’s winter plan
Drawing on the lessons of previous winters, namely the lack of sufficient places offered by FEDASIL to unaccompanied minors not requesting asylum in the first reception stage, a transitory solution has been found this year within the youth assistance sector in Belgium’s French Community to ensure that unaccompanied foreign minors do not have to sleep on the street.
There are two parts to the emergency winter measures set up by the youth assistance department:
1) 10 places in excess of capacity in the certified youth assistance services in Brussels and Wallonia. They were made available to unaccompanied foreign minors from 10 December 2012 to 31 March 2013, under the authority of the Chief Youth Assistance Officer, at the following services: Le Tamaris (2 places), Le Logis (1 place), Abaka (1 place), Synergie 14 (2 places), La Hutte (1 place), El Paso (1 place) and Jules Lejeune (2 places). These are all 24-hour residential services;
2) 10 other places have been available for the night since 1 January at Le Chenal de l’Amarrage in Hennuyères. Transport from Brussels to this centre is organised accordingly and it is made available whenever the temperature drops below 0°C at night. The first unaccompanied foreign minors arrived therefore as soon as temperatures dropped. The centre offers them guidance and food.
In total therefore, 20 unaccompanied minors were taken care of by the youth assistance service this winter. This was the very first time that such measures had been taken by the Belgian French Community.
This arrangement was made in addition to a whole range of measures taken to help unaccompanied foreign minors since the beginning of the legislature such as reception in certified services, special reception in specialised services and pilot projects. It should be pointed out, however, that under the Decree of the French Community of 4 March 1991 on youth support, such measures are taken only after a decision-making authority (a Chief Youth Assistance Officer or Youth Assistance Director or a youth court) has established that the young person concerned is in danger or difficulty.
Action taken by the Flemish Community
Intersectoral aid networks for young people in crisis situations can rapidly set up support services for minors in particularly difficult situations. These networks are accessible round the clock seven days a week and offer guaranteed assistance. In response to the fact that unaccompanied foreign minors have also been reported at contact points, a practical directive was drawn up in October 2012 for the attention of crisis networks. This directive stipulates that such minors can be registered with crisis-situation offices regardless of their status or their place of residence. Various parties including the minor’s guardian may carry out this registration. While aid for young people in crisis situations does not form part of the usual or standard reception procedure for unaccompanied foreign minors, it must be regarded as a separate and distinct form of assistance intended for vulnerable minors in crisis situations who are not entitled to any other form of aid. Every time a case is brought to its attention, the contact point will conduct an independent assessment of the situation and decide whether it is appropriate to intervene or to provide reception facilities or support. In 2011 and 2012 about 60 unaccompanied foreign minors per year were registered with the Community’s crisis situation offices.
1.3 New measures relating to unaccompanied minors not requesting asylum
Having reviewed the winter plan and following the various measures taken (such as the increase in the number of reception places), it was decided to confirm that unaccompanied foreign minors not requesting asylum would be admitted by FEDASIL to Observation and Guidance Centres (COO) under certain conditions (newly arrived migrants, registered with the Aliens Office, directed to the Sugny Observation and Guidance Centre, etc.).
On the basis of the observation carried out, young people without any particular needs falling into the category of specialised assistance (by the Communities) will be steered towards the second reception phase of the FEDASIL network.
As of 29 March 2013, the FEDASIL network has 1 363 places for the reception of unaccompanied foreign minors. The current occupation rate is 75%.
There are enough free places to accommodate those in need.
1.4 Co-operation between FEDASIL, the Guardianship Department and the Aliens Office
The Aliens Office, the Guardianship Department and FEDASIL have recently established a co-operation agreement on the registration of persons declaring themselves to be unaccompanied foreign minors and not seeking asylum registered in Belgium.
FEDASIL has now undertaken to admit any unaccompanied minor who is not an asylum seeker to a COO for a period of no more than fifteen days (first stage) provided that he or she has registered with the Aliens Office, been interviewed by an official from the Guardianship Department and been confirmed to be a minor.
Unaccompanied foreign minors who have not applied for asylum will also be registered, meaning that in future it will be easier to determine the number of such minors in Belgium.
If these specific places in the FEDASIL network become saturated, the young person concerned may approach the Guardianship Department, which will contact other accommodation facilities and appoint a guardian. In this way, even if reception places are oversubscribed, support for unaccompanied foreign minors will continue to be guaranteed.
Depending on the outcome of the observation and guidance carried out during the first stage of reception, the unaccompanied foreign minor may be transferred to the second stage of reception within the FEDASIL network.
If there is still a doubt as to whether the person is a minor and age testing is carried out, the person will be accommodated for no more than two days in a FEDASIL reception facility, after which, once it has been confirmed that the person is a minor, the Guardianship Department will look for a reception place, where appropriate within the FEDASIL network.
As a result of this improved co-operation between the authorities concerned, young people can be identified and assigned a guardian within a much more comfortable time frame for them.
1.5 Increase in the number of guardians
The Guardianship Department has certified some 100 guardians since the beginning of 2012. In late 2012 and early 2013, recruitment was stepped up as 52 independent guardians and two guardians employed by the Red Cross were certified by the Guardianship Department.
There are currently 319 guardians certified by the Guardianship Department and hence capable of providing support for unaccompanied foreign minors.
For 2013, the Guardianship Department plans to continue to recruit independent guardians, particularly those employed by associations which have experience in assisting unaccompanied minors.
It is also planned to set up a system of coaching and support for other guardians by employed guardians in 2013.
2. Reception of illegally resident families
Because of the saturation of federal reception centres since 2009, it has been impossible for FEDASIL to respond positively to the requests for accommodation sent to it pursuant to the Royal Decree on illegally resident families. It will be recalled that the memorandum of 15 March 2012 gives a detailed explanation of FEDASIL’s position on this subject. It has to be said however that while in 2011 only 43 families were accommodated, in 2012, 127 families comprising 567 persons were accommodated.
Furthermore, at FEDASIL’s request, the emergency welfare service, the SAMU social, opened 50 additional places this winter to accommodate families covered by the aforementioned Royal Decree. As a result of the various measures taken by the Belgian State and by FEDASIL, ordinary reception centres (other than those reserved for unaccompanied foreign minors) are no longer overcrowded.
The reception of families including minors is not unconditional. Decisions on residence must be respected. Any structural solution provided for this target group must therefore abide by the principle that they will return quickly to their country and not result in the unlimited extension of initial accommodation arrangements.
The Belgian State has decided that in April 2013 it will set up an open centre for returning migrants. For this purpose, the draft Royal Decree on the operating rules for this centre will shortly be submitted for royal assent. This centre will provide facilities for unsuccessful asylum seekers and illegally resident families to prepare and organise their return home. In this connection, FEDASIL and the Aliens Office have undertaken to co-operate in efforts to organise the voluntary return of these families to their countries of origin or to a country in which they are authorised to reside.
With regard to unaccompanied foreign minors, as a result of various measures taken by the Belgian State, FEDASIL and the Communities, the reported infringements of the rights enshrined in Articles 17, 7§10 and 11 §§1 and 3 came to an end in 2012.
Furthermore, FEDASIL has established means of preventing any future infringements of these rules, particularly by increasing its accommodation capacity through enhanced co-operation between the bodies concerned in the event that a new accommodation crisis were to arise.
1 In accordance with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints the following Contracting Parties to the European Social Charter or the revised European Social Charter have participated in the vote: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Republic of Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.