Blog post by Dr Jean-Baptiste Farcy (Universite de Louvain), and forms part of a series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
Introduction
The UN Network on Migration held the first regional review of implementation of the GCM in November 2020. The region chosen was UNECE, covering Europe and North America. Many states submitted reports on their implementation of the GCM, including Belgium. In this blog, that report is considered from the perspective of the existing laws, regulations and practices of migration in Belgium.
The report written by the Belgian authorities offers an overview of existing operational or legislative measures as well as projects that are in line with the 23 objectives of the Global Compact for Migration.
Although the signature of the Global Compact in Marrakech led to the fall of the federal government, the report shows that current practices and legislations are, to some extent, already in compliance with the Global Compact. Since Belgium has not had a fully-operating government between December 2018 and September 2020, the measures reported were in place before the signature of the Global Compact.
The aim of this shadow report is to offer a counterpoint to the official view and to point out areas where more should be done in the future. Before doing so, positive developments and good practices should be highlighted.
Good practices
No major issues were reported in relation to objectives 1 (collect and use disaggregated data), 2 (minimize the structural factors that compel people to leave), 4 (proof of legal identity and documentation), 11 (border management), 12 (certainty and predictability in migration procedures), 14 (consular protection), 16 (migrants’ empowerment), 19 (migrants’ engagement in sustainable development), 22 (portability of social security rights) and 23 (strengthen international cooperation).
To be sure, Belgium has an advanced civil registration system (including for foreigners) which allows for comprehensive data on flows and stocks of migrants. Annual reports by the federal agency for migration (MYRIA) provides aggregated and disaggregated data, with references to gender, countries of origin and categories of entry, among others. The availability of data does not however mean that Belgium has an evidence-based policy or evidence-based public debates.
The weight of nationalist and far-right parties in Flanders exacerbates stereotypes and misinformation.
Also on a positive note, the Belgian Agency for Development (ENABEL) runs a large amount of projects in selected African countries, thus enhancing international cooperation. These projects covers issues such as civil registry, local employment, agriculture, skill partnerships and skills matching as well as information campaigns. For instance, with the support of the European Commission, Belgium is currently implementing a pilot project to train unemployed Moroccans in the field of information technologies and communication with the goal of facilitating their labour market integration in Morocco and Belgium. Either through bilateral agreements or multilateral agreements under the auspice of the EU, Belgium has a good track record of international cooperation in the field of immigration.
In Flanders, integration courses have been in place for over 15 years and successful results have lead other Regions to follow suit (although they were sceptical in the first place). The empowerment of migrants is enhanced thanks to language classes and personal follow-ups aimed at helping people through administrative procedures and labour market integration. As long as the overall objective is to help people navigate through the complex institutional landscape of Belgium, integration courses can foster migrants’ empowerment.
Regarding the portability of social security rights, Belgium has concluded 25 bilateral conventions with major countries of origin, including Morocco, Algeria, Turkey, the USA, the DRC, India and Canada. This is definitely a good practice which could be expanded in the future.
With regards to the other objectives of the Global Compact, results are mixed and more efforts should be done in the coming years.
Areas for progress
To begin with, the announcement of a new website of the Immigration Office is to be welcomed. The current website offers information in French and Dutch mainly. Information in English remains sporadic. In the future, the website should be fully translated and information should be more clearly displayed. Today the lack of information or misinformation is a recurring obstacles for would-be migrants and newly-arrived third country nationals.
Regarding Objective 5, Belgium could do more to expand legal pathways for regular migration, in particular for labour migrants. Labour immigration amounts only for over 12% of legal immigration to Belgium. In the last 20 years, the federal government and now regional governments (labour immigration is a regional competence since 2014) have favoured the admission of skilled migrants. Admission for low-skilled workers is strictly limited to professions with a structural deficit of workforce. Legal pathways should thus be expanded to cover all skill levels. Moreover, work permits remain tied to an employer. In order to comply with the Global Compact, Belgium should foresee the issuance of open or, at least, sectoral work permits. This would also decrease the risk of abuse or violations of workers’ rights, in accordance with Objective 6.
In order to increase flexibility, status change should be facilitated. In practice, status change remains an issue for many migrants, in particular for international students. Migrants face strict legal constraints and deadlines which prevent them from moving from one status to another, thus increasing the risk of becoming irregular.
In order to protect more effectively irregular migrant workers, firewalls should be placed between public services, including the labour inspection office, and the immigration office, as advocated by the (former) UN Special Rapporteur on the Human Rights of Migrants, François Crépeau. Greater means should also be allocated to labour inspections to ensure that labour migrants’ rights are effective. Regarding irregularly-staying migrants, regularisation programmes could be set up, especially in the context of the pandemic during which there are shortages in essential sectors.
As underlined by the report, Belgium does not have a specific strategy against smuggling. Greater means should arguably be allocated in order to make the law more effective and to offer greater protection to vulnerable people.
Belgium does not have a policy to deal with “transmigrants” either. Migrants staying in Belgium on their way to the United Kingdom (in most cases) are left in a state of destitution with no services or facilities offered to them. Moreover, although the official report states that “Search and rescue operations seem less relevant for the Belgian situation”, crossings of the Channel are increasing and, in the future, Belgium might need to intervene alongside France and the UK.
The issue of detention of irregular migrants is also a recurring theme. Although it is designed as a last resort measure, the detention of irregular migrants is a widespread practice. The “risk of absconding” is interpreted widely in the legislation, thus making detention legitimate in most cases. Moreover, alternatives to detention do not exist, except for families who are staying in “open facilities”. The detention of minors no longer occurs in practice (not yet de jure) following condemnation by the European Court of Human Rights and media coverage. For others, credible alternatives to detention should be designed and explored. Yet, the new government plans to open more rooms in so-called “closed centres” and no alternative is on the table.
More generally, return procedures should be carried out in a more transparent and humane way. Domestic judicial scrutiny over return orders is limited since courts can only review the legality, and not the opportunity, of return measures. Recently, Belgium has been condemned twice by the European Court of Human Rights for its return policy (Saqawat v. Belgium and M.A. v. Belgium). In the latter case, Belgium was condemned for its cooperation with the infamous Sudanese regime and for disregarding the risk of inhuman or degrading treatments upon return.
As the report acknowledges, discrimination on the labour market remains an important issue hampering the empowerment of migrants and their socio-economic integration. International and domestic studies show that Belgium has one of the lowest percentage of active migrant population (in part due to the fact that family migration represents over 40% of migration flows to Belgium). Although successive governments make promises to facilitate the labour market integration of migrants (and their descendants), no measure has proven effective to date.
One way to do so would be to reform the regulation on the recognition of skills. Currently, conditions are restrictive and procedures long. As a consequence, migrants are either employed in occupations for which they are overqualified or they need to study again, which is obviously a costly choice.
Conclusion
Overall, the Belgian legislation is to a large extent in compliance with a number of objectives of the Global Compact, although it is not invoked in policy debates and legislative reforms. Since the fall of the federal government at the time of the signature of the Global Compact, it does no longer figure in public debates.
However, there is certainly room for improvement in the future, in particular with regards to Objectives 3 (accurate and timely information), 5 (available and flexible legal pathways) and 21 (safe and dignified return). Legal pathways, including for the purposes of work, should be expanded across all skill levels and also made more flexible in order to account for the dynamic nature of migration. Moreover, comprehensive and detailed information should be more widely available, including in non-official languages of Belgium and at least in English. Finally, return procedures and legal proceedings should be enhanced in order to safeguard migrants’ rights, to reduce administrative discretion and to lower the number of people in detention thanks to credible alternatives to detention.
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