Belgian law reserves the examination of appeals in matters of asylum and migration to the administrative courts. In some cases, the law provides for a specific appeal before the judicial authorities in matters related to, for example, decisions to deprive a person of their liberty or to refuse to recognise the validity of a marriage because there are suspicions of a marriage of convenience. Under the asylum and migration regulations, some appeals suspend the execution of the decision and others do not. Read here about the possible appeals against return decisions for foreign nationals in irregular stay in Belgium and their possible suspensive effects.
The Council for Alien Law Litigation is an administrative jurisdiction specialising in appeals against individual decisions concerning asylum and migration. With the exception of appeals against decisions of the Commissioner General for Refugees and Stateless Persons (except the decisions mentioned in Article 39/2 §1 3° paragraph), its competences are limited to the annulment of decisions taken in violation of forms that are either substantial or prescribed on pain of nullity, excess or misuse of power. The Council reviews the legality of the decision at the time it was made. When a foreign national requests the annulment of the decision, in principle this appeal is not suspensive. The appeal suspends the execution of the decision only in a limited number of situations:
- the suspension is requested by means of the extreme urgency procedure. This procedure has an automatic suspensive effect if the return is imminent and the appeal is lodged within ten days of notification of the decision, if it is the first return decision, or within five days if it is the second return decision. If the extreme urgency appeal is lodged after these deadlines, certain conditions must be met for it to also have an automatic suspensive effect (for example, if the person concerned or their lawyer was not notified of the date of the return within 48 hours prior to the return). The request for suspension in cases of extreme urgency is examined by the president of the chamber or the judge of the Council for Alien Law Litigation within 48 hours of its receipt. This period becomes five days if the removal or refoulement is scheduled after a period of eight days.
- the Council orders the enforcement of the decision to be suspended until it has ruled on the annulment. The decision may, however, be executed before the Council has ordered the suspension, outside of the extreme emergency procedure.
An administrative cassation appeal against a decision of the Council for Alien Law Litigation lodged with the Council of State does not have a suspensive effect.
A person detained for return may lodge an appeal with the Council Chamber of the Court of First Instance against the deprivation of liberty to which they are subject, on a monthly basis. If the Chamber orders their release and if the Immigration Office or the Public Prosecutor's Office has not appealed, they will be released immediately. However, the return decision may be executed before the Council Chamber has ordered its judgment. The detainee may also appeal against the order of the Council Chamber to the Indictment Division of the Court of Appeal. This appeal will not suspend the execution of the return decision. However, the return will not proceed if the person is the subject of a release order issued by the Chamber of the Council against which the Immigration Office or the Public Prosecutor's Office has appealed. Appeals to other (international) courts against the removal or deprivation of liberty, such as the European Court of Human Rights, the Court of Justice of the European Union, the Belgian Constitutional Court or other Belgian civil courts, do not suspend the execution of the return unless these courts order the execution of the decision to be suspended until a judgement is rendered.
Successful appeals against decisions on which the return decision is based (e.g. the refusal of an application for the regularisation of residence on humanitarian grounds) have a direct effect on the return. So, once the Council has annulled the decision, the return decision is no longer enforceable. However, during the appeal process, the return order may be enforced unless the Council has ordered a stay of enforcement of all related return orders. The foreign national may request the faster processing of their application for ordinary suspension against, for example, the refusal of an application for the regularisation of residence on humanitarian grounds when they are subject to a return or refoulement decision whose execution is imminent. Exceptionally, an appeal to the Council for Alien Law Litigation against certain decisions listed exhaustively in the law will automatically suspend the execution of all related return measures until a ruling has been made (for example, an appeal against the refusal of family reunification or an appeal against the refusal of a student's residence permit).
Civil proceedings, such as the conclusion of a marriage, the registration of the birth of a child, a divorce or the purchase of property, have no impact on the return process. The foreign national can be represented by their lawyer or another legal representative in Belgium and can apply for a short-stay visa. When criminal proceedings interfere or conflict with administrative proceedings, they take precedence and the administrative proceedings are suspended until the conflict is resolved. (For example, return procedures are suspended in the event of preventive detention). If there is no conflict, both procedures will take their course. The fact that a person must appear before a criminal court for testimony or trial does not suspend the execution of the return. This person can apply for a short-stay visa when returned to their country of origin and can be represented by their lawyer or another legal representative in Belgium.