Amendment of the Aliens Act: a first, critical review

On 9 February, an amendment to the Aliens Act of 15 December 1980 was approved by the entire majority in the federal parliament. The vote was followed by a stream of opinions, some more nuanced than others. Comparisons with the former apartheid regime in South Africa were not shunned and an open letter of protest was signed more than 70 times by a string of prominent figures. A few months ago we already wrote on this blog about the (un)constitutionality of invoking a Belgian state of emergency. The recently voted amendment to the Aliens Act also seems to raise essential questions regarding its compatibility with fundamental rights in the Constitution and with European law norms. We therefore consider it necessary to carry out a critical analysis of the most far-reaching changes to the Aliens Act and the implications they entail for both asylum policy and the fight against terrorism.

Expulsion under less stringent conditions

The Act amending the Aliens Act creates various separate rules on refusal and removal, depending on the residence status of the foreign national. Five categories can be distinguished, of which the third provoked the most reactions. It concerns third-country nationals who enjoy long-term resident status, as well as those who have already resided here uninterruptedly for at least ten years. These persons can be expelled on serious grounds of public order or national security, instead of the normal ordinary grounds of public order or national security that apply to other third-country nationals. These new conditions are less stringent than before. Previously, a serious threat to the security of the country was required for the expulsion of persons who had already lived in Belgium for ten years. Moreover, the exception introduced in 2005 is abolished, i.e. the exemption for foreign nationals born in Belgium or who arrived here before reaching the age of 12. The recently voted amendment also places them in the aforementioned third category of foreign nationals.

The new Act thus distinguishes between ordinary and serious grounds of public order or national security, without offering any guidance through a definition. The reference to the case law of the Court of Justice, in response to the Council of State's request in its opinion to specify this distinction, is not sufficient either. The Court of Justice regards ordinary grounds of public order or national security as “the existence of a sufficiently serious threat to a fundamental interest of society” (see P.I. (2012) and J.N. (2016)). The case law on serious grounds, however, is rather illustrative. Terrorism and drug trafficking, among others, are classified by the Court of Justice under this notion (see Calfa (1999) and H.T. (2015)). This incomplete definition leads to legal uncertainty for the above-mentioned third category of persons who fall under these expulsion rules. The Act therefore does not seem to preclude arbitrary application by the administration, especially since the explanatory memorandum to the bill contains only a non-exhaustive list of factors that may influence the seriousness of the threat.

Scope of the concepts of “public order” and “national security”

In addition, the scope of the concepts of “public order” and “national security” is not specified, or at least insufficiently specified, in the Act. Critics therefore believe that the amendment grants the Immigration Office (DVZ) too broad a power to define these concepts. They strengthen this view by pointing to the abolition of the prior opinion of the Advisory Commission for Foreign Nationals. The explanatory memorandum to the bill, however, refers frequently to the case law of the Court of Justice of the European Union (CJEU). Still, one may question the value of this. The case law of the CJEU applies mainly to EU citizens. Moreover, in the context of defining these concepts, little or no reference is made to the case law of the European Court of Human Rights (ECtHR), even though several fundamental rights are affected and the ECtHR has considerable influence on national asylum policy.. An analysis of these two concepts in the light of European case law and the related implications for the elaboration of the amended Aliens Act is therefore called for.

First, it is a general principle of international law that a state has the right and the duty to guarantee public order. Belgium may therefore expel persons to protect public order. The ECtHR has already confirmed this in several judgments (see Abdulaziz e.a. t. VK (1985), Moustaquim t. België (1991) and Mubilanzila Mayeka en Kaniki Mitunga t. België (2006)). Incidentally, it is only with regard to this general principle that the explanatory memorandum to the bill refers to ECtHR case law.

Second, the CJEU states that “Member States essentially retain the freedom to determine the requirements of public policy in accordance with their national needs”. The Court immediately qualifies this, however, by stating that the concept of “public order” must be interpreted strictly where it is used to derogate from the obligation to respect the fundamental rights of third-country nationals (see Gaydarov (2011) and Z. Zh. (2015)). Besides the disturbance of the social order that occurs with any infringement of the law, a genuine, present and sufficiently serious threat affecting a fundamental interest of society is required (see Gaydarov (2011) and Byankov (2012)). In addition, principles such as non-refoulement, the right to family life, the best interests of the child or special status take precedence over the amended Aliens Act and may prevent expulsion. A recognised refugee, for example, will be protected against removal, and his or her refugee status must first be withdrawn.

Third, again according to the CJEU, the personal conduct of the person concerned must be taken into account in the assessment. This implies that the Immigration Office must carry out an individual examination. Although committing a criminal offence is in itself insufficient to establish a threat to public order, the mere suspicion that the person concerned has committed an offence, in combination with other elements emerging from the individual examination, may lead to the conclusion that public order is affected (see Jipa (2008), Gaydarov (2011) and Z. Zh. (2015)). The Immigration Office's margin of appreciation is therefore fairly wide. The Court of Justice does state that “other elements” must be taken into account, but does not clarify which these are or how much weight they carry.

Finally, the Court of Justice equates “national security” with “public security” (see Tsakouridis (2010) and H.T. (2015)). The concept covers, among other things, the internal and external security of a Member State, the impairment of the functioning of institutions and essential public services, etc., and is therefore interpreted fairly broadly.

This incomplete definition, combined with the abolition of the opinion of the Advisory Commission for Foreign Nationals, leads to a broad discretionary power for the administration. The sometimes vague wording in the case law of the CJEU and the ECtHR therefore does not offer a full guarantee against abuse by the administrative services. Supporters point out, however, that the current system contains sufficient checks and balances to counter arbitrariness. The expelled foreign national can lodge an appeal, after which the case is heard before the Council for Alien Law Litigation (CALL), which examines the compatibility of the expulsion with the ECHR. In the event of disagreement about the aforementioned concepts, it is therefore not unlikely that the Council for Alien Law Litigation will exercise a (marginal) review of how the concepts are defined. This reliance of the government on the appreciation of the judge is remarkable, however, given the strong criticism that State Secretary Francken and the N-VA recently levelled at the “activist judge”.

The appeal procedure: abolition of the suspensive effect of the appeal and the right to be heard

A judicial procedure before the Council for Alien Law Litigation is available against the decisions of the Immigration Office. The dismantling of some procedural safeguards in this context, however, raises questions. In the newly voted Act, the suspensive character of the appeal procedure disappears in certain cases. The removal measure can thus no longer be suspended upon lodging an action for annulment in cases where the decision was taken on “imperative grounds of national security”. As a result, in such a case expulsion decisions taken by the Immigration Office can be enforced immediately. The foreign national can still submit his observations before the decision, but nothing prevents the administrative service from disregarding them. Individuals can therefore be expelled even before a ruling has been given on the action for annulment against that expulsion.

The absence of suspensive effect when lodging an appeal may constitute a violation of the right to an effective remedy ex Article 13 ECHR. In the judgment S.K. v. Russia (2017), the ECtHR dealt with a removal measure issued against a foreign national of Syrian nationality, as well as the lawfulness of the appeal procedure granted. The Court found a violation of Articles 13 juncto 2 and 3 ECHR, since the remedies available to the applicant were not sufficiently guaranteed. In particular, it pointed to the absence of suspensive effect upon lodging the appeal. It therefore remains to be seen how the non-suspensive appeal in the amended Aliens Act will be assessed in the light of the ECHR.

The new Act also explicitly addresses the right to be heard. The period within which the foreign national can submit his or her observations is in principle set at fifteen days. The Immigration Office may, however, shorten the period or grant a longer one. The explanatory memorandum shows that, among other things, the short time elapsed since residence was granted, or the proven absence of family, cultural or social ties in Belgium, may justify a shortening of the period. In addition, the right to be heard may be dispensed with “if the particular circumstances […] preclude or prevent this, because of their nature or seriousness”. Various possibilities have consequently been written in that undermine the effective use of the right to be heard. Moreover, the government chose not to enshrine the right to be heard, as a general principle of law, extensively in the Act. The aim is that the administration can adapt its practice quickly and easily “[…] taking into account its resources and the needs in the field”.

Relevance of the new Act?

If there were an imminent threatening problem in Belgian society and legal order that this amendment seeks to address, it remains to be seen whether this threat has thereby effectively been removed or substantially reduced. The question of political expediency must therefore be raised as to whether there really is a need for such an amendment in the context of the fight against terrorism. State Secretary for Asylum and Migration Theo Francken himself already stated that the extended expulsion possibilities with regard to the third category of foreign nationals will only be applicable to some 70 persons. Moreover, it may be doubted whether Belgium will really be safer when the persons concerned are expelled to another EU Member State or a third state whose legal system potentially proves unable to monitor threats to society.

Conclusion

The amended Aliens Act blows hot and cold at the same time. Although the amendment is, all in all, less excessive than several opinion pieces suggest at first sight, this does not detract from the potential danger of the amendment. The lack of precise definitions, coupled with the abolition of the opinion of the Advisory Commission for Foreign Nationals, points to a broad power of appreciation for the Immigration Office. This is reinforced by the cases in which the administration can dispense with the right to be heard. The removal of the suspensive effect of the appeal before the Council for Alien Law Litigation in certain cases also seems difficult to justify. Finally, questions arise about the necessity and effectiveness of this amendment. The future will tell whether the amended Aliens Act will lead to abuse and whether it will withstand review against fundamental rights and human rights.

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