Lawyer’s Voice – Defending the rights of children in migration detention in Belgium through coordinated strategic litigation

This blog post was written by Eva Gangneux, Advocacy Officer, and Benoit Van Keirsbilck, Director, at Defence Children International – Belgium. DCI – Belgium is a Belgian local association, member of the worldwide movement of the same name. While the association aims to promote and defend all children ‘s rights, it is mainly specialized in the fields of juvenile justice, children and migration, violence against children and child participation. DCI – Belgium mainly intervenes by conducting action research, legal actions, advocacy and training professionals.

The original version of the article, in French, is available on the website of DCI – Belgium here.

In August 2018, Belgium started to detain children and families in closed centres – again – for migration purposes. Almost one year later, and thanks to the tireless efforts of civil society and lawyers, the Belgian Council of State suspended the practice because of the detention conditions the children were held in.

The Belgian authorities had been detaining children in the 2000s but decided to stop the practice in 2008[1]. Following complaints lodged against Belgium[2] before the European Court of Human Rights, the government forbade the detention of children, unless the facilities were adapted and it happened “for as short a time as possible” – thereby going no further than the Court’s rulings and the EU Return Directive.

In July 2018, with the adoption of a Royal Decree[3], the government returned to the practice of detaining children which, according to many experts, endangers the physical and mental health of children and violates all their fundamental rights. Since then, 22 children have been locked up with their families in the purposefully built centre which borders the runways of Brussels Airport.

The Council of State[4] , seized by fifteen associations[5], including DCI-Belgium, and the Order of the French-speaking and German-speaking Bars of Belgium, suspended the execution of the royal decree which constituted the legal basis for such detentions.

Today, no child can be held in a closed centre because of its migratory situation[6].

 

The decision of the Council of State: suspension of the possibility to detain children because of their migratory situation

On 4 April 2019, intervening in the context of an emergency procedure, the Council of State suspended the execution of part of the provisions of the Royal Decree which organized the detention in practice.

The law of 15 December 1980[7], asamended in 2011, provides that in certain circumstances a family with minor children may be detained. This law was the subject of an action for annulment before the Constitutional Court introduced by several associations, including DCI-Belgium[8]; the Court considered that this provision is not unconstitutional provided that the place of detention is adapted to the needs of families with minor children by referring to the criteria set by Article 17 of the Return Directive 2008/115/EC[9]. The Court referred to the Government for the establishment of these conditions by Royal Decree which was consequently adopted on July 22, 2018. The appeal lodged before the Council of State was thus aimed at this Royal Decree and therefore concerned the conditions of detention (that is, the respect of the conditions recalled by the Constitutional Court) and not the principle as such.

The Council of State has recognised the urgency of the fact that the implementation of the Royal Decree causes a sufficiently serious attack on the interests of the children and could lead to irreversible damaging consequences; it therefore ordered the suspension of the decree until it can rule on its cancellation.

The Royal Decree has been partially suspended on the grounds that it does not prohibit detaining children for a month, which is a long period of time, in a place where children may be exposed to particularly loud noise (the centre is a few hundred meters from the runways of the busiest airport in the country).

Numerous reports and statements by experts and international bodies[10] have shown that detention for reasons related to migration leads to serious violations of the rights of the child, regardless of the government’s claims to have fully adapted this centre to respect the rights of detained children. The United Nations Committee on the Rights of the Child in particular has stated that the detention of a child on grounds of the migratory status of his or her parents constitutes a violation of the rights of the child and is contrary to the principle of the best interests of the child[11].

To avoid further attempts to organize the detention of children[12], it is essential that a law providing for the absolute prohibition of the detention of children in closed centres because of their migratory situation be adopted. Associations that have obtained the suspension of the Royal Decree are determined to pursue this objective.

 

Taking legal action to defend the rights of the child

Several French-speaking and Flemish associations specializing in human rights, children’s rights, immigration law, mental health and the Order of the French-speaking and German-speaking Bars have joined forces to act together in court. The cooperation between these different actors is very constructive. It is facilitated by the existence of formalised networks (such as the Platform Minors in exile).

Legal action is obviously not the only means mobilized by Belgian civil society to try to put an end to these serious violations of the rights of the child[13]. However, it is a tool that can be very powerful. In recent years, many complaints criticizing the detention of these children have been brought, with some success, before the Constitutional Court as mentioned before, the Council of State or the European Court of Human Rights[14].

Since last summer, numerous individual appeals for the release of these children have also been brought before the national courts[15] and even before the United Nations Committee on the Rights of the Child[16]. Two procedures are currently under way before the Committee.

When combined with other types of actions (aimed in particular at mobilizing public opinion and authorities), carried out in partnership with other associations, envisaged strategically at national and international level, legal actions are a considerable lever for the defence of the rights of migrant children.

 

Notes:

[1] A small number of children continued to be detained in the hours before departure from Brussels’ National Airport, after they had been transported there from one of Belgium’s alternatives to detention, the open return houses. This happened on an ad-hoc basis and without a detention order.

[2] Mubilanzila Mayeka and Kaniki Mitunga v Belgium (nr. 13178/03, 12.10.2006), Muskhadzhiyeva a.o. v. Belgium (nr. 41442/07, 19.01.2010), Kanagaratnam and others v Belgium (nr. 15297/09, 13.12.2011).

[3] The Royal Decree of 22 July 2018 modifies the Royal Decree of 2 August 2002 which regulates the regime and conditions of the premises managed by the Foreigners’ Office, where a foreigner is detained. The 2018 Royal Decree was published on the Official Gazette (Moniteur Belge) on 1 August 2018.

[4] The Council of State is an advisory and jurisdictional institution at the junction of Belgium’s legislative, executive and judicial powers. Its most important competence is its power to suspend and annul both individual and statutory administrative acts that are contrary to the legal rules in force.

[5] These were Défense des Enfants International (DEI) – Belgique, Ligue des droits de l’Homme, Liga voor mensenrechten, Jesuit Refugee Service-Belgium, Bureau d’accueil et de défense des jeunes (Service Droit des Jeunes de Bruxelles), Service droit des jeunes-Namur, Vluchtelingenwerk Vlaanderen, Coordination des organisations non-gouvernementales pour les droits de l’enfant (la CODE), Kinderrechtencoalitie Vlaanderen, Coordination et initiatives pour et avec les réfugiés et étrangers (Ciré), Association professionnelle des psychiatres infanto-juvéniles francophones, Association pour les droit des étrangers (ADDE), Association des psychologues praticiens d’orientation psychanalytique, Wahim belgo-luxembourgeoise et NANSEN.

[6] Children can be – and are – held for migration purposes in so-called return houses, which are legally considered places of deprivation of liberty. These houses are open but there are limitations to the extent that children and their families can leave the house.

[7] Article 74/9 of the Law of 15 December 1980 on the access to the national territory, the stay, and return of foreigners.

[8] Coordination des Organisations non gouvernementales pour les droits de l’enfant, Défense des Enfants International (DEI) – Belgique, Jesuit Refugee Service Belgium, Ligue des Droits de l’Homme and UNICEF Belgium, supported by Liga voor Mensenrechten. Cour Constitutionnelle, arrêt n°166/2013 du 19 décembre 2013

[9] Directive 2008/115/CE of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals.

[10] See General Observation n° 4 (2017) of the Committee on Migrant Workers and General Observation n° 23 of the Committee on the Rights of the Child. See also Platform for International Cooperation on Undocumented Migrants, 2019, Child immigration detention in the EU.

[11] See the report of the Committee on the Rights of the Child on the 2012 general conference, par. 78. See also the United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, in particular principle 21, par. 46 and guideline 21.

[12] Shortly after the Council of State issued its ruling, the Minister in charge of migration policies affirmed that she would plan new works to better isolate the detention centre and therefore allow the detention of children, even though this is not as simple as it seems. Besides the fact that it is not possible to isolate the external premises, including the small playground, these works would necessarily take time and the adoption of a new Royal Decree.

[13] See for instance the campaign “You don’t lock up a child. Period” and others aiming at raising awareness among public opinion and authorities, including an “Opinion Tribunal” which had symbolically condemned the Belgian State for detaining migrant children.

[14] See Constitutional Court, ruling n° 166/2013 of 19 December 2013; Council of State, ruling n° 234.577 of 28 April 2016; European Court of Human Rights, 12 October 2006, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium; European Court of Human Rights, 19 January 2010, Muskhadzhiyeva and others v. Belgium.

[15] The Chambre du Conseil and the Chambre des Mises en accusation, two criminal jurisdictions in charge of controlling the legality of detention.

[16] This Committee can receive individual communications (complaints) on the basis of the 3rd Optional Protocol to the Convention on the Rights of the Child.

Related Posts
X