BELGIUM
Right
to Fair Labor Conditions
Right
to Education and Training
Right
to a Minimum Subsistence
Right
to Moral and Physical Integrity
Can an undocumented migrant receive accommodation in a public housing
shelter or in a private shelter that receives public funding?
No
information provided.
Is it legal for a landlord to rent out an apartment to an undocumented
migrant?
Yes,
an undocumented migrant can legally sign a lease.
Do undocumented migrants have access to public health care or is there a
special health service only for undocumented migrants?
Undocumented migrants in Belgium have the right to urgent medical care,
according to the Royal Decree of 12 December 1996. This decree states that
urgent medical care can be both preventive and/or curative. Therefore, “Urgent
Medical Care” refers to a wide variety of urgent care provisions. An
operation, childbirth, an examination, physiotherapy, medication, etc., can all
be considered in regard of the above-mentioned decree.
“Urgent Medical Care” must be differentiated from “Emergency
Medical Assistance.” The latter is the assistance required immediately in case
of an accident or illness. Emergency Medical Assistance is specifically
regulated by another law and applies to everyone, including undocumented
migrants.
In the past there has been considerable confusion about the term
‘urgent’. Mostly doctors are rather restrictive when first confronted with
the procedure. However, it seems that the more the doctors use it, the more they
enlarge the term. One can say that the common interpretation of the term
‘urgent’ is evolving towards ‘necessary’. Doctors consider e.g. regular
follow-ups as urgent medical help, as well as vaccinations. In this way, the
rather inaccurate description in the law gives in the end the possibility to a
broad interpretation, which is also the experience of Médecins Sans Frontières
(MSF) and Medimmigrant.
Organisations working for undocumented migrants like MSF and Medimmigrant
see it as their task to inform hospitals and doctors on the term of
Urgent Medical Care. MSF for example had a project in Verviers (a small town in
the East of Belgium), informing the general practitioners (GPs) in the region on
the Royal Decree and access to health care in general. After some time, MSF
stopped the project since all the GPs and the regional hospital understood the
law and acquired some experience in practicing and applying it.
Also in the city of Ghent there are good experiences, but in places like
Brussels, Antwerp or Liege it seems to be more complicated.
Access
to mental health care for undocumented migrants is problematic, since in Belgium
this is provided mostly by psychologists and not by psychiatrists. Psychologists
however are not allowed to sign for urgent medical care, and as a consequence
medication cannot be provided.
For
more information: http://www.medimmigrant.be
Do health care
professionals have the duty to report an undocumented migrant to the
authorities? If yes, why? If no, why not?
No.
3. Right to
Fair Labor Conditions
Does national labor law stipulate that an employer is obliged to pay an undocumented migrant for work done, even if the worker does not have a legal residence or work permit?
No
information provided.
If an undocumented
migrant has an accident at the workplace, can s/he receive coverage from Social
Security (via accident insurance) to cover the costs of treatment or care?
Yes, they have the right to a grant from the Fund for
Work Accidents, with certain conditions to be fulfilled. In reality, it is
unlikely that an undocumented worker will begin such a procedure.
Can an undocumented
migrant bring a court case against an employer for withheld wages?
Ordinary
law still applies with regard to general rights and duties of the employee.
Do undocumented migrants have the right to organize?
Foreigners,
also those without papers, have the right to association. For an official
association, the law stipulates that at least three-fifths of members must be
Belgians or foreigners with legal residence.
Can an undocumented
migrant be a member of a trade union?
No information provided.
5. Right
to Education and Training
Can undocumented minors under the age of 18 enroll in schools?
Undocumented
minors have the right to education. There is an official agreement stating that children under the
age of 18 can go to school unconditionally.
Are
schools obliged to report the presence of undocumented children/adolescents to
the authorities?
No, schools do not have to report these children or their parents to the authorities. There is even an agreement between the federal and regional authorities and the schools on this matter. The police will not use the schools to trace undocumented children (and their families).
Do schools receive any funding for these children/adolescents?
Schools
receive public funding for all their pupils, also undocumented ones.
Do undocumented adults (over the age of 18) have the right to education
and training?
For
adults, there is no right to education and training. Undocumented adults can go
to university if they have the right diplomas. However, universities can decide
to accept or refuse students as they wish.
For training courses, undocumented adults can only attend those that are
not government-funded. If the organization is government-funded, as is the case
with e.g. language courses for the unemployed, undocumented adults are
precluded.
6. Right to a
Minimum Subsistence
Do
undocumented migrants have a right to welfare benefits from the government?
Persons
without legal residence in Belgium are exempt from the right to social
assistance. Only rejected asylum seekers who are waiting for a decision on their
appeal to the State Council, Belgium’s highest administrative court, have the
right to food and housing assistance (but not monetary assistance). Undocumented
migrants who have applied for regularization do not have the right to social
assistance.
However,
in principle the mission of public centers for social welfare (O.C.M.W./C.P.A.S.)
is to ensure a decent existence for all residents in Belgium, including people
without residence documents. In practice, though, the O.C.M.W./C.P.A.S. hardly
ever grant support to undocumented migrants. This is due to the fact that the
law does not compel them to do so, except for urgent medical care.
Can
an undocumented migrant legally get married or legally cohabitate?
Yes.
Is
it legal to deport an undocumented migrant without his/her spouse or child/ren?
No,
a married couple has the right to live together.
8. Right
to Moral and Physical Integrity
Are there rules and regulations upholding the right to integrity of
undocumented migrants in this country?
No,
not as such.
Has this country been condemned for not respecting international
agreements concerning protection of the personal integrity of undocumented
migrants?
Yes. Belgium has been condemned by the Committee against Torture for the
way its prisons are run.
Are detention centres accessible to non-governmental organizations?
Yes, but only if they receive permission from the Ministry of Interior
Affairs.
Are undocumented migrants entitled at any time to free legal aid from a
jurist or lawyer?
Yes,
they are entitled to free legal aid by a lawyer through a pro-deo system.
However in practice it is not easy to fulfill the necessary requirements.
Lawyers are trying to change the system. You need a document from the police
stating that you do not have an income.
Can undocumented migrants freely assert their rights in court and in the
appeals court?
Yes, though in practice there are a number of problems.