Lecture in the Cicero Foundation Great Debate seminar "European Migration and Refugee Policy: New Developments", PARIS, 15 February 2001.

Introduction

My speech is about regularisation in Belgium in its European context. So, I could make a comparison of the different regularisation operations. However, I couldn't go much further than descriptions.

In order to answer in a somewhat provocative manner, the regularisation in Belgium doesn't fall within a European context at all. On December 22nd, 1999, the Belgian Parliament voted a law on the regularisation of aliens staying on the Belgian territory. Nearly 32.000 files concerning about 50.000 people were introduced. Today, all these files are being examined. This task should be completely finished this year. Before this operation, Belgium never carried out any mass regularisation of foreigners. Hence, it aroused interest and debates on the subject. The only one-shot regularisation operation which Belgium ever knew, took place in 1974, over 25 years ago. Belgium, being confronted to a crisis, decided to stop the economical immigration. At the same time, it carried out the regularisation of somewhat 7000 people, essentially of Turkish and Moroccan nationality. Ever since, regularisation took place daily, according to each individual case. Throughout the years, they became more frequent.

Since 1974 No Legal Basis for Regularisation

Since the immigration stop in 1974, no legal basis existed. Lacking any legal basis, article 9.3. of the aliens legislation was used. According to this article, there may be an exception to the principle that the application for residence (in general) should start in the country of origin. According to article 9.3, "this application could, in exceptional circumstances, be presented to the mayor of the place of residence". This simple procedure rule became for nearly twenty years the basis of all decisions in the field of regularisation. The administration as well as the Minister himself made a sovereign assessment of these so-called exceptional circumstances. The people concerned did not know anything about the criteria used and the motives for the decisions did not appear. Several circular letters were therefore progressively published in order to meet the particular circumstances. First of all, we have the victims of human trade, mainly victims of prostitution networks, whom were promised a temporary residence permit when they would introduce a complaint against these networks. Another directive took care of the foreigners living together with Belgians. Indeed, the law only granted residence to married aliens. A residence permit was then granted on the basis of living together within the context of a long-lasting relationship. Later, a directive granted a no-limited residence to the Bosnian refugees who could prove their integration in Belgium. Concerning the Kosovars, a directive provided for a renewable residence permit of six months. However, whereas regularisation in general was concerned, the Minister still had a discretionary power. Several elements did challenge that power: the criticism from the side of the NGO's, and also the increase of the number of applications. When the Commission of Internal Affairs of the Senate in 1997 evaluated the law, the system was several times criticised. The NGO's asked for an independent regularisation commission and proposed regularisation criteria. The Minister of the Interior then refused these proposals. He declared that an illegal residence can not justify regularisation. The fact that one has never been constrained to leave the territory, is not a motive for staying. He also said that the creation of an independent body would not mean anything else than a useless bureaucratic creation.The Senate's commission concluded that Belgium did not have an overall objective and transparent vision of a regularisation policy.

The Regularisation Process Starts

On December 15th, 1998, a circular letter did, however, for the first time establish a regularisation process in front of a regularisation commission. This commission was composed of a magistrate, a representative of the Aliens Office and a member of the Centre for Equality of Chances (which is a body falling within the competence of the Prime Minister). The Aliens Office supervised the administrative personnel. Some believed that all guarantees for objectivity were not fulfilled, as the Aliens office was still present. We can say now that this commission which disposed of few resources, has, however, realised an important task and regularised a large number of persons. In 1998, something happened that shook and divided the Belgian public opinion, which was already hit by the Dutroux affair. A Nigerian national, Semira Adamu, died during an attempt to repatriate her to her country of origin. The "Commissariat général aux réfugiés et aux apatrides" refused to grant her asylum. Several repatriation attempts were made on her behalf. Her physical opposition on each of these occasions resulted in a failure of these attempts, until her tragic death occurred. This tragic accident got much attention in the news media and political authorities were systematically questioned as a consequence of several corruption affairs. The Minister of the Interior resigned in order to calm down the atmosphere. A judicial inquiry was started in order to determine respective responsibilities. The public opinion was divided on the issue. Those who asked for the immediate stop of constrained removals were numerous. That fact resulted in the opening of borders. Those who believed that the victim came here within the context of a prostitution network and did not have to be considered as a martyr, were much less heard. However, and this is really the most important thing, nearly everyone could see for the first time that aliens were about to risk their lives to stay in our country. Following the death of Semira Adamu, the Government of the time thought it was its obligation to react and to clarify the methods for the removal of illegal foreigners, which were until then kept relatively secret. There was such a heavy pressure that every process for constrained removal was blocked. An association of people in an illegal situation, the national Movement of people without papers was constituted a few months earlier. The death of Semira Adamu gave it an increasing importance. From now on, Belgium had to take into consideration this new pressure group. When the liberals made a coalition government with the socialists and the ecologists in July 1999, they inherited a very hot issue. Constrained removals were abandoned, some foreigners were held in closed centres for over six months, the air companies hesitated or refused to co-operate and the police waited for clear instructions on the use of constraint. Following the model of the Saint-Bernard's Church in Paris, several churches were occupied, such as the Beguine Church in Brussels. The ecologists claimed for a reaction to the claims of this movement of "sans-papiers". The Government decided to create an independent body whose task it would be to regularise the people without papers under certain conditions. The constitution of the present Government depended on a precise agreement about these conditions. This agreement was reached after a harsh debate.

Regularisation of Four Categories of Foreigners

Hence, an agreement was reached on the regularisation of four categories of foreigners.

The first category were those whose severe illness prevented them from returning home without risking their lives. No one could have demanded to send someone back to a country where a certain death awaited him. We are not talking here of a significant innovation. These people were already regularised in virtue of a circular letter of 1998 and will continue to be so in the future.

A second category of people being liable to regularisation, concerns foreigners who cannot return home. Originally, they aimed at countries such as Sierra Leone, Afghanistan or Angola. Very soon however, the regularisation commission gave an extensive interpretation of that category. The Belgian law provides that the "Commissariat aux réfugiés" , refusing asylum applications, can nevertheless advise the Minister not to repatriate towards certain countries. The regularisation goes beyond this non-removal clause. It does not grant any extension: as soon as the impossibility is certified, the person concerned is regularised and obtains a long-term residence permit. We might talk here of progression but not of innovation.

The present Government's innovation is to have recognised in a law and, provisionally, that two other categories of aliens might be regularised:

A third category of those who had applied for asylum but who did not receive any reply in four or three years.

A fourth category of those who have been in Belgium for a long time and who have developed long-lasting social ties. On the one hand, one implicitly recognises that the authorities were unable to answer within a reasonable delay to an application for asylum. On the other hand, that Belgium had permitted illegal immigrants to stay on Belgian territory and develop long-lasting social ties. Looking at the regularisation criteria, one can see that the operation does not only concern illegal immigrants. We could also be dealing with long-lasting asylum seekers, having legal residence permits. The severely ill people could also have a restricted but nonetheless legal residence. Those who believe they won't be able to return to their country, are very often asylum seekers. They got into a specific situation where they apply both for asylum and regularisation. Three months after the government was installed, it decided to start the regularisation operation.

No European Context for the Belgian Regularisation

This regularisation operation could not be placed in a European context. If it were not for the occupation of churches in Paris, we wouldn't be aware of any external influence. The question will then be if the procedure and the modalities of the regularisation can be seen in a European context or even serve as an example on that level. The context of regularisation, being an increasing migratory pressure and a recurrent phenomenon of clandestine immigration, can be observed everywhere in Europe. The punctuality of the operation is not even specific to Belgium. The fact that it precedes a reform of the asylum procedure and that it involves a corroboration of an efficient removal policy, does not distinguish Belgium form other European countries. Finally, the procedure that was chosen shows some originality: the applications are not examined by the Minister of the Interior or his administration but by an independent body. The task of this regularisation commission consists of advising the Minister after the individual examination of each application. Remarkable element: the Minister is not legally obliged to follow this advice. Nevertheless, he engaged himself politically towards the Parliament that examined the draft law to follow these advises. To be precise, it concerns an engagement to follow the positive advises. He has the possibility to deviate from a negative advice. On the contrary, the power of decision lies with the Minister. He simply accepts, within a particular context and for a certain period, to follow the advice of an independent body. The specific character of the Belgian system is not only linked to the independence of the commission and the political engagement of the Minister of the Interior. It is also due to the composition of that commission. Searching for a balance, the Government appointed into each of the eight chambers of the regularisation commission three people coming from different backgrounds : a magistrate, a solicitor, and a person designed by a non governmental organisation that is active in that field. It was a big challenge: in what way these men and women, with very different political and philosophical convictions, would they manage to get along? Criteria were of course laid down by law, but in a subtle way such as to leave enough room for appreciation in order to avoid unjust situations. Eight chambers were thus instituted, five French speaking and three Dutch speaking ones. Finally, the decision making process falls within the scope of a quasi judicial procedure. Moreover, when a negative advice is given, it is sent to the person concerned who disposes of three working days to communicate his remarks and to contest the advice before the minister takes his decision.

What Can Be Learnt from the Belgian Regularisation Process?

What can we learn from the Belgian regularisation process? I will try to stay as objective as possible. Indeed, I would be lying if I told you that this operation is working in an ideal way and that whole Europe should be inspired by it. So I will try to make allowances. First of all, this regularisation operation has not really met with enthusiasm in the population. Yet Belgians supported several demands. It is quite typical to notice the contrast between the sometimes hostile indifference towards immigration in general, and the surge of selective generosity towards this or that particular person, because he is known in the neighbourhood, at work or - because of his children - in school. But there has never been a significant protest march in favour of this operation. At the very worst, it was accepted as a necessary harm: the regularisation of a phenomenon of the past, which the government had let develop underground. More than a consciousness-raising campaign, the best way to convince people will be to show in a few years what those regularised persons have become. We must hope that several of them will have managed to contribute through their work to the development of the country.

Another positive item is to have associated the regularisation with the removal of illegal people. This is more a political observation: the current coalition gathers liberals, socialists and ecologists. In view of the sensitivity, the assurance had to be given that each aspect of the policy was fully implemented, even if it does not necessarily please everyone. So this regularisation operation concerns more or less 50.000 aliens. This number could be considered as too high by some people, either because they believed that many of them should have been expelled instead of being regularised. On the other hand, the resumption of the forced removals, that had been suspended after the death of Semira Adamu, and the expulsion by collective flights have sometimes met with criticism by the other components of the government. So it is only by associating both policy objectives, and this right from the start, that an agreement could be reached between the different components of the Government.

What Difficulites Did We Meet?

After the positive points, I will now point out the difficulties. The main difficulty came from the setting up of this independent commission. Those who had asked him a few months before to let the commission work independently called the Minister for help. So a management plan was created by the Minister and accepted by the regularisation commission. However, entrusting such a sensitive task to an independent commission instead of an administration involves risks. We were thinking of creating a 'ex nihilo' commission. But there was also the danger that this commission would become a permanent commission. Its members could have hoped to keep their work or to develop even more legal immigration. Another reservation concerns the perverse effect of the guarantees and the mechanism of protection designed, in order to avoid decisions that would be taken without having a perfect knowledge of them. By organising an almost jurisdictional procedure, we also took the risk of seeing all the legal instruments used in order to delay the case. Just some time ago, more than forty percent of the cases were postponed that way, sometimes several times and this, without clear official motives. The time left to react to a negative advice supposes that the Minister knows the date of the advice's notification and thus when the deadline expires three days later. Once more the importance of informing about the notification had to be explained to the municipalities. Another difficulty was linked to the control of public order. Indeed, in a classic way, the law makes provision for excluding the foreigner who presents a danger to public order from the benefits of law. When the criminal record is not "clean", a thorough exam is needed in order to know the nature of the offence. A simple driving offence is not in itself a danger for the public order. Many illegal persons have a criminal record precisely because they have been checked as being illegal. This is of course no reason to turn down the regularisation. Moreover, many illegal persons are just unknown to the Belgian administrations. It happens sometimes that they have been signalled under another name. So a research is than necessary in order to make the possible link based on other information like date and place of birth, residence, … All those methods give the impression that the regularisation operation is very slow, too slow. It is also a matter where rumours spread very quickly and where the climate of trust is very fragile. Some non-governmental organisations did not hesitate to advise foreigners not to ask for regularisation; they were even talking about a trap.

Conclusion

I come to the end of my presentation, during which I have tried to present some particularities of the regularisation operation in Belgium and the things we can learn about it. We must, however, never forget that this operation, even if it gives a chance to thousands of people, is not a purpose in itself. It is first of all a regularisation of the situation. All over Europe, this operation is depicted as being a favour granted by the state. In fact, I would like to say that regularisation exists since immigration exists, that is to say that it has always existed. It is only the form that has changed. When there was no central power, this regularisation happened de facto. Little by little, the immigrant found its place in the society. As soon as there was a central power, we often talk about favours, as the government's fiat. Today the trend is to find out the most objective facts. A regularisation operation uses all the forms required in a democracy, worth of this name, anxious not to make any discrimination among persons who are in the same situation. We could object that regardless of this exceptionality, and the announcement every time that the operation is unique, the principle itself, i.e. regularising a situation that has become uncontrollable, does not make it a 'noble' political operation. This operation may look like a short-sighted management of the migration influx, while the asylum law gives an answer to a better defined and planned protection and humanitarianism, and economical immigration gives more quantifiable objectives. But when we look more closer at it, things are not as simple as that. It is quite easy to make people accept that the Convention of Geneva concerning refugees is applied. It is also quite easy to agree on the immigration of qualified foreigners who are to fill in the lack of labour force, even if it raises many questions about the increasing imbalance between rich and poor countries that I will not broach.

On the other hand, I think it will always become more difficult to have the regularisation operations accepted. If one announces that it will be the last one, the public opinion will feel swindled when the next one will be announced. If it happens on a regular basis, illegality becomes the official antechamber of legality. Indeed there is a risk of calling people a clandestine who know they just have to wait several years before being sure that they will be regularised. That way, law creates paradoxically illegality. Even with those hypocrisies and what is left unsaid, regularisation must not be taken thoughtlessly and neglected in favour of the debates about the right on asylum and immigration. The right on asylum is defined in an International Convention and can not be restricted; legal economical immigration is quite easy to confine to the labour market. Regularisation must be very cautiously handled because the situation it attempts to straighten out can not be made objective. By definition, nobody knows how many clandestine people there are. The moment for regularisation depends on factors that differ constantly. In Belgium, the death of Semira Adamu was an important element. The perseverance of some movements for people without papers and the exceptionally strong pressure of the NGOs in Belgium have speeded up the process. The arrival of ecologists has made it an element of the governmental program. So regularisation is based on an essentially subjective assessment of the situation. Before being able to carry out such an operation, one must first confront the level of probable resistance in the population as concerns this operation and the inevitable migratory pressure it creates to a wealthy country. I am a convinced European. I hope Europe will harmonise immigration and asylum policy, even if it takes several long years. On the other hand, I am absolutely sceptic about a European regularisation policy. As well as concerns the regularisation criteria, as concerns the decisions of implementing such an operation, I don't imagine for only a single second the possibility of a European agreement on that matter. Even if things can be learned from the regularisation operations led on a European level, I think it is only on a national level that these operations will continue to be carried out. Concluding, a regularisation operation seems legitimate when it goes together with measures meant to avoid that another operation would be necessary. Nobody can guarantee that these measures will be efficient enough. But, on the contrary, accepting a permanent system of mass regularisation as a fait accompli, would show an unacceptable lack of perspective on the subject of asylum and immigration. It would devalue the asylum right and would make all migratory policy useless.

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