It has been two years since the Immigration Department, Fedasil (the agency for the reception of asylum seekers) and the Guardianship Service, the three departments responsible for overseeing unaccompanied foreign minors (known as MENA) in Belgium, agreed on a new operational protocol.
The protocol, finalized in January 2013, provided police more power during stops and interviews with foreigners claiming to by minors, allowing police to administer an on-site age test rather than go through the Guardianship Service. The police may also officially summon the minor to a station for registration, and limits the number of summonses that will be sent – after the youth ignores two summonses, the Guardianship Service may immediately begin taking decisions on behalf the child.
Realizing that the protocol extended the powers of the relevant authorities while at the same time limiting the rights of children involved, three organizations, the League of Human Rights, the Youth Law Service in Brussels and Defense of Children International, appealed to the Council of State, the highest administrative court in Belgium. The experience of these organizations showed that quite often, summoned children did not dare to turn up for registration out of fear. After the second time, when they lose their rights, they are left to themselves, without a home or guardian and at risk of falling victim to human trafficking.
The Council of State has recently issued its decision in the case, finding that government authorities may have far exceeded their powers and violated the rights of unaccompanied foreign minors.
The judgment was rendered after comparing the established Guardianship Act, which dealt with MENA, to the new protocol and finding that the latter did establish additional requirements to the law. This not only meant that the protocol should have been submitted in advance for administrative review by the Council of State and published in the Belgian Monitor, the official journal publishing laws of the Belgian state, but also that these three bodies simply had no jurisdiction to do the work of the legislature.
As a result, all of the decisions that have been taken for nearly two years on the basis of this protocol have now been declared illegal. It also means that all unaccompanied foreign minors who were negatively impacted by the protocol, from those declared adults to those stripped of all rights for not responding to summonses, must be given a review of their status by the Guardianship Service as soon as possible.
Another consequence is that unaccompanied foreign minors who have lost the right to stay or even the chance to apply for a residence card (for example, if they’ve been declared an adult) are entitled to compensation.