Nicolas Bernard, professor at the Université Saint-Louis in Brussels
Migration, which has been a burning issue over recent months, is disrupting our traditional housing policies. But what does the law have to say on the matter? This paper will first examine Belgian law followed by international law.
I. The asylum seeker
From when the asylum application is submitted, and for the entire duration of its assessment, asylum seekers in Belgium benefit from ‘reception’, governed by the 12 January 2007 federal law (transposed from European Directive 2003/9/CE of 27 January 2003). With the aim of allowing the person in question ‘to lead a life in keeping with human dignity’, this reception takes the form of ‘material assistance’ which consists of ‘accommodation’ within an ‘individual or community reception facility’. In addition, the above-mentioned assistance includes meals, clothing, medical, social and psychological support as well as the granting of a daily allowance. Furthermore, Fedasil (Belgium's Federal Agency for the Reception of Asylum Seekers) issued an ‘instruction’ in December 2015 establishing minimum quality standards in the area of ‘housing security’. As a result of this, the reception centre must be in good structural condition, have reliable heating, and have sufficient smoke detectors, etc.
To house asylum seekers, it is not only public authorities and partner organisations that should make their housing stock available; private housing stock can also be called upon. To this end, the 2 January 2001 law gave the Minister with responsibility for social integration the power to ‘seize any abandoned building’ in order to ‘make it available for the reception of asylum applicants’ (in return for ‘fair compensation’).
II. The refugee
A person who has just been recognised as a refugee has a maximum of two months to find independent housing, outside of the accommodation structure; failing that, they will find themselves homeless. The reception facility must remain an active party in the meantime as it is in the interest of the facility to help the refugee organise his/her departure. Otherwise, the facility runs the risk of the refugee trying to extend their stay within the facility. Furthermore, the Fedasil instructions of 29 August 2008 oblige the reception facility to provide ‘assistance in finding housing’, which includes access to the tools for searching (specialist newspapers, internet, real estate agencies, etc.), provision of the material means necessary for the search (telephone, train tickets, etc.) as well as assistance – mainly linguistic – in the contact between refugee and landlord. The centre will also take charge of ‘preparing the resident for transition’ and informing them about financial issues (rent and charges) and legal issues (unfit housing, property inspections, rental contracts) related to housing. The centre can help migrants to move, particularly in giving advice on various matters (regarding connection to meters for example).
Furthermore, foreigners permitted to stay in Belgium are allowed to bring their family to Belgium too... but only (and this is less known) if they have in Belgium ‘adequate housing to receive the family member(s) applying to join them’. This is in order to prevent the family being reunited with the migrant living in Belgium where housing conditions may be unfit and contrary to human dignity. This would also risk the people concerned being put at the mercy of ‘slum landlords’. Unfortunately, the standards for adequate housing referred to in this legislation are high, which risks making it de facto impossible to reunite families.
III. Irregular migrants
Can undocumented migrants sign a rental contract? Yes! The administrative uncertainty in which rejected asylum seekers find themselves in no way prevents them from signing a rental contract, nor from seeking redress in the courts (in the event of the landlord not fulfilling their obligations). No civil or legal provision subordinates the exercise of these rights to the legal status of the person in question.
What about the point of view of the landlord? What does the landlord risk, in other words, by signing a contract with an undocumented migrant? On the one hand, ‘anybody who knowingly helps or tries to help a person from outside of the EU Member States to enter or stay on Member State territory [...] in violation of the legislation of that State’ is punishable by a prison sentence (eight days to one year) and/or a fine (of €1700 to €6000). On the other hand, these criminal sanctions are invalidated if ‘the help is offered for mainly humanitarian reasons’. Everything is dependent on the amount of the rent; this amount may (grossly) exceed the generally agreed ceilings to the extent that the leaser would be convicted of exploiting another person’s misery, thereby falling under the 10 August 2005 legislation regarding slum landlords. However, a fair rent that is in keeping with market rates (and in line with the housing quality), should not lead to prosecution of the landlord.
I. The (repeated) indictment of Belgium for deficiencies in accommodating migrants
a) European Court of Human Rights, Decision on V.M. and others v. Belgium, 7 July 2015
Article 3 of the European Convention on Human Rights prohibits inhuman and degrading treatment. While Belgium offers asylum applicants accommodation during the assessment of their file, there are grounds for questioning the after-care, i.e. the living conditions of asylum seekers whose application has been rejected and who, as a result, are forced to leave the reception centre (and, in theory, to immediately return to their country). In the Decision V.M. and others v. Belgium, the Court decided that the applicants found themselves, on being evicted from the reception centre, ‘without means of subsistence’, ‘without housing’ and ‘without access to sanitary facilities’; they found themselves living on the streets and ‘they remained there – with no assistance to cater for their most basic needs (eating, washing and housing)’.
And what about the fact (possibly clearing the Belgian State of responsibility) that the accommodation centres were full? This is irrelevant according to the Court. ‘Notwithstanding the fact that the reception crisis was an exceptional situation’, the national authorities have ‘failed to satisfy their obligation not to expose the applicants to conditions of extreme poverty for four weeks’. Also, ‘the applicants were thus victims of treatment which failed to respect their dignity’, given that ‘this situation undoubtedly aroused in them feelings of fear, anguish or inferiority capable of inducing desperation’. Conclusion: ‘such living conditions, combined with the lack of any prospects of their situation improving, attained the level of severity required to fall within the scope of Article 3 of the Convention and amounted to degrading treatment’.
b) European Committee of Social Rights, Decision on Defence for Children International v. Belgium, 23 October 2012
Article 17 of the revised European Social Charter states the right of minors to social, legal and economic protection. On this basis, the European Committee of Social Rights (responsible for ensuring that parties to the charter conform) found against Belgium because ‘the government has, since 2009, no longer guaranteed accompanied foreign minors unlawfully present in the country any form of accommodation in reception centres (through either the FEDASIL network or other alternative solutions)’. Furthermore, ‘the persistent failure to accommodate these minors shows, in particular, that the Government has not taken the necessary and appropriate measures to guarantee the minors in question the care and assistance they need and to protect them from negligence, violence or exploitation, thereby posing a serious threat to the enjoyment of their most basic rights, such as the rights to life, to psychological and physical integrity and to respect for human dignity’. Similarly, ‘the fact that at least 461 unaccompanied foreign minors were not accommodated in 2011 and the problems posed by inappropriate accommodation in hotels lead the Committee to the conclusion that the Government failed to take sufficient measures to guarantee non-asylum seeking, unaccompanied foreign minors the care and assistance they need, thereby exposing a large number of children and young persons to serious risks for their lives and health’.
II. Extension of the protection offered to migrants in an irregular situation by the revised Social Charter regarding camp evictions (European Committee of Social Rights, Médecins du Monde International v. France, 11 September 2012)
Concerning the ‘Scope of the Revised European Social Charter in terms of persons protected’, the Appendix to the revised European Social Charter explicitly states that it is aimed at ‘foreigners only in so far as they are nationals of other
Parties lawfully resident or working regularly within the territory of the Party concerned’. In spite of this, the European Committee of Social Rights did not shy away from condemning France for the way in which it evicted Roma migrants (many of whom were illegal migrants) from their camps and settlements; among other factors were the use of physical violence and destruction of assets that marred the police interventions.
How, more specifically, did the committee manage to base its decision in law (given the Appendix)? By referring back to the concept of human dignity. It is formally recognised that the non-conditionality inherent in the concept of human dignity means there can be no differentiation in the granting of the most basic rights. As such, ‘those who do not fall within the definition in the Appendix cannot be deprived of their rights linked to life and dignity under the Charter’, emphasised the Committee, for which, ‘the restriction in paragraph 1 of the Appendix [concerns] a wide variety of social rights and impacts on them differently and that such a restriction should not end up having unreasonably detrimental effects where the protection of vulnerable groups of persons is at stake’.
 Art. 10, §2, para. 2, of the 15 December 1980 law.
 Art. 77, para. 1, of the 15 December 1980 law.
 Art. 77, para. 2, of the 15 December 1980 law.
 On that point, one can usefully refer to the reference grid for rents such as that adopted (at first reading) by the Government of the Brussels-Capital Region on 24 November 2016.
 The Grand Chamber of the European Court (to which the Belgian government had referred the case), reviewed its position of 17 November 2016 deciding purely and simply to strike the case out, for reasons not related to the merits of the case.