Editorial by our Bar Association President and the President of Avocats.be

Dear colleagues,

In a widely publicised ruling handed down on 13 September 2023, the Council of State suspended the recent decision by the Secretary of State for Asylum and Migration to temporarily exclude single male asylum seekers from the protection offered by the law of 12 January 2007 on the reception of asylum seekers and certain other categories of foreign nationals. The decision was taken under an extreme emergency procedure as part of an appeal brought by Avocats.be and a number of associations active in defending the fundamental freedoms of foreign nationals.?

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In its judgment, the Council of State ruled that "Article 3 of the aforementioned law of 12 January 2007 provides that 'every' asylum seeker has the right to reception to enable them to lead a life in keeping with human dignity"; that 'reception' means material aid granted in accordance with 'this law or social aid granted by the public social action centres in accordance with the law of 8 July 1976 on the organisation of the public social action centres'"; and that "Article 6, § 1, of the same law provides that the benefit of material aid applies to 'every' asylum seeker from the moment they lodge their asylum application and applies throughout the asylum procedure". ?

The Council of State then concluded that "the law of 12 January 2007 does not allow the opposing party to deprive a category of asylum seekers, consisting of single men, of the right to reception in order to resolve the difficulties it claims to be facing".?

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We would have every reason to welcome this clear ruling in an appeal the primary aim of which is to prevent dozens of disadvantaged people from being sent out onto the streets every day, were it not for the fact that, even before the lawyers entered the courtroom, the author of this suspended act announced that she would not comply with a ruling by the Council of State against her. This latest episode in a legal saga that has been underway for almost two years highlights the serious dangers that the Secretary of State's attitude poses to the very foundations of our rule of law, apparently without any serious challenge from her government partners. This sequence of events is not only serious, it is disastrous. We would even say "poly-disastrous".?

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The Secretary of State is knowingly violating the law. She acknowledges this and is not bothered by it. She refers to a kind of force majeure that is not in fact a force majeure, since the mechanisms of the law of 12 January 2007 - as the Council of State reminds us between the lines - make it possible to organise other forms of reception in specific situations, and these the Belgian state stubbornly refuses to consider. This is the first disaster.?

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The State has known for a long time that it is acting illegally. In addition to the thousands of individual cases where the labour courts have found in the favour of unfortunate asylum seekers deprived of their right to reception, Avocats.be and the other associations that are bringing this case before the Council of State have also been multiplying their legal successes for months. For example, decisions handed down by the Court of First Instance in summary proceedings on two occasions, and then on the merits in a scathing judgment on 29 June, ordered the Belgian State and Fedasil, under threat of heavy fines, "to put an end to the systemic violation of Union law in terms of reception and to take the necessary measures to allow, without delay, all applicants for international protection to benefit from material aid". The Belgian State accepted this judgement, but the federal authorities have never complied with these rulings and have at this point organised a form of permanent exemption. What a terrifying example for the ordinary citizen who has to respect and execute a court decision! This is the second disaster.?

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And the constant violation of international, European and domestic law by the Belgian State is not insignificant in terms of its consequences. Whether it is an error in the granting of subsidies or a poor assessment of a tender in a public contract, the effect - and sometimes one wonders if this is not the objective - of the violations observed and reprimanded by the judges is to place dozens of vulnerable people on the street every day, heaping distress onto distress. This is the third disaster. ?

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In addition to the tragic fate reserved for these poor people, Belgium risks being classed as one of Europe's illiberal democracies. And the European Court of Human Rights, which recently examined this sad case, made no mistake: it ruled just before the summer that "the evidence produced before the Court reveals a systemic problem in the respondent State concerning the ability of the authorities to comply with its own domestic legislation on the right to accommodation for asylum seekers, including final court decisions ordering compliance. Although it is not unaware of the difficulties with which the Belgian authorities have been confronted, the Court considers that such a practice is incompatible with the principle of the rule of law which underpins the entire Convention system" (ECHR, Camara v. Belgium 18 July 2023, §121).?

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Our Government must get its act together. Quickly. Very quickly. For the thought of a government that respects neither its laws nor its institutions is chilling. May this solemn appeal by the Bar for an awakening of conscience and respect for our institutions finally be understood and heard.?

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Yours faithfully,?

Emmanuel Plasschaert, Pierre Sculier,

President of the Brussels Bar President of Avocats.be