Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Migration for Employment Convention (Revised), 1949 (No. 97) - Belgium (Ratification: 1953)

Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes that the Act of 15 December 1980 on the entry, residence, establishment and expulsion of foreign nationals was amended on several occasions between 2007 and 2012, particularly with regard to family reunification, with resource and accommodation requirements being imposed to be able to host the family member concerned, the return of nationals of third countries in an irregular situation (voluntary return, compulsory return, vulnerable groups such as families with children), the procedure for medical regularization and the status of foreign unaccompanied minors. The Committee also notes the adoption of the Act of 26 November 2011 amending and supplementing the Penal Code with a view to incriminating abuse of a situation of weakness and extending penal protection for vulnerable persons against ill-treatment, which reinforces the repression of trafficking in persons. The Committee notes that the Government Agreement of 1 December 2011 provides that “taking into account the disparities between regions, the criteria for labour migration will be entrusted to the regions”, with competence for issuing residence permits remaining at the federal level. This Agreement adds that, in light of the many changes that have occurred recently, the legislation applicable to immigration will be coordinated in a “Code” with a view to ensuring due understanding of the provisions that are in force. The Committee invites the Government to continue providing information on its national immigration policy and legislation, and particularly on any transfer of competence to the regions relating to the criteria for migration for employment and on the codification of immigration law.

Article 2. Procedure for civic integration and assistance. The Committee notes the establishment in Flanders and Brussels of a civic integration procedure which includes a training programme (social guidance, Dutch courses and vocational guidance) during which the person concerned is required to follow regularly at least 80 per cent of the courses, under penalty of an administrative fine, and personalized individual support. This procedure is compulsory, particularly for adults who are not nationals of the European Union, the European Economic Space or Switzerland who have been issued a residence permit for over three months for the first time. The Committee also notes that the Walloon Government approved a draft decree in February 2013 respecting the assistance provided to new arrivals, which targets individuals who have been in Belgium for less than three months and who have a residence permit for over three months. Under the procedure envisaged, after registering with the communal authorities, the migrant has to visit an assistance office within three months, under penalty of a fine. In the context of personalized support, French language courses, citizenship education and socio-vocational assistance will be proposed to the persons concerned, depending on their needs, but without compulsion. The Committee requests the Government to provide information on the operation of the integration and assistance procedures in practice, and particularly on the number of migrants who follow them through compulsion or voluntarily, and on any penalties imposed in the event of failure to comply with the requirement to attend the assistance office or to follow the courses (including in relation to residence permits or the social benefits received).

Article 6. Equality of treatment. The Committee notes that the Government’s report does not contain information on this subject. Recalling that section 7(2) of the Act of 20 July 1981, as amended in 2007, provides that “any direct distinction based on nationality shall constitute direct discrimination, unless it is objectively justified by a legitimate purpose and the means of achieving this objective are appropriate and necessary”, the Committee once again requests the Government to indicate the situations in which discrimination towards migrant workers could be considered justified in relation to the matters set forth in Article 6(1)(a)–(d) of the Convention. The Committee also requests the Government to indicate whether courts or other authorities have issued decisions on matters relating to discrimination based on nationality and more generally encompassing questions of principle relating to the application of Article 6 of the Convention and if so, to provide copies of these decisions.

The Committee also recalls that the Centre for Equality and the Fight against Racism (CELCR), established in 2003, aims to promote equality of opportunity and to combat any form of distinction, exclusion, restriction or preference on the basis of numerous grounds, including nationality, race, religion and sex, and that it is also responsible for monitoring the observance of the fundamental rights of foreign nationals, observing migration flows and promoting action to combat trafficking in human beings. The Committee once again requests the Government to provide information on the number of cases reported to and dealt with by the CELCR concerning discrimination based on nationality in the field of employment, and the action taken as a result. The Committee also asks the Government to provide information on the measures taken to ensure that, in practice, women migrant workers, and particularly female foreign domestic workers, are not treated less favourably than Belgian nationals in relation to the matters set forth in Article 6(1)(a)–(d) of the Convention.

Article 6(1)(a)(iii). Equality of treatment with regard to accommodation. The Committee notes the detailed information provided by the Government in its report on the procedures for assigning social housing in Flanders, and particularly on the need for applicants to prove that they speak Dutch or are committed to learning it. More particularly, the Committee notes that proof of knowledge of Dutch may be provided by presenting a diploma or attestations for that purpose, or through a rapid test made by the landlord with a view to assessing the linguistic knowledge of the applicant. If the landlord considers that the knowledge of Dutch is insufficient, the applicant is sent to the “House of Dutch” to follow courses. According to the Government’s report, registration by the applicant and the commitment to attend at least 80 per cent of the courses, although without any obligation to succeed demonstrates the will to learn Dutch and is sufficient for the assignment of social housing. In the case of failure to comply with the requirement to follow the courses, a fine can be imposed on the tenant. The Government adds that between 2008 and 2012, only one fine was imposed and that, up to now, no rental contract has been terminated on linguistic grounds. The Committee requests the Government to continue to survey the impact of the procedure to ensure that it does not result in practice in the application to migrant workers, who are legally resident on Belgian territory, of treatment that is less favourable than that applied to Belgian nationals in relation to housing.

Article 6(1)(d). Legal proceedings. The Committee notes the Government’s indication in its report that no statistics are available on the number of appeals lodged with the Review Council for Foreign Nationals by migrant workers. The Government however emphasizes that it may be considered that such appeals were not very numerous, as a residence permit is in theory automatically provided once a work permit has been issued. The Committee recalls that under the terms of section 9 of the Act of 30 April 1999 (Chapter V), “a foreign worker who is lawfully resident in Belgium and to whom a work permit has been refused or withdrawn, as well as an employer for whom a recruitment permit has been refused or withdrawn, may lodge appeals with the competent authority”. Furthermore, exemptions from the provisions relating to recruitment permits, with the reasons duly given in individual cases worthy of interest for economic or social reasons may be granted under section 38(2) of the Royal Order of 9 June 1999. The Committee requests the Government to provide information on the appeals made by employers in cases of the refusal or withdrawal of recruitment permits and by workers in cases of the refusal or withdrawal of work permits (the number, the reason given for the withdrawal or refusal, and the outcome of the appeal), and on the number and nature of the individual cases in which the competent authorities have granted exemptions and issued or renewed recruitment permits. Please also provide information on any judicial assistance measures intended to assist migrant workers with such procedures, including linguistic assistance.

Article 8. Maintenance of residence in the event of incapacity for work. In its previous comments, the Committee noted the prohibition set out in section 21(3)(4) of the Act of 15 December 1980, as amended by the Act of 26 May 2005, to expel “foreign workers affected by permanent incapacity for work ... in cases where the industrial accident occurred or the occupational disease was contracted in the performance of work by a legally resident foreign national in Belgium”, except in cases of serious violations of public order or national security. With regard to the right of residence in the event of temporary incapacity for work, to which the Government refers in its report, the Committee understands that this right is maintained for as long as the person concerned is able to demonstrate that he or she is continuing to seek employment and has real possibilities of being hired (section 40(4)(1)(1), in conjunction with section 42bis(2)(1) of the Act of 15 December 1980). The Committee recalls that in accordance with Article 8(1), a migrant for employment who has been admitted on a permanent basis and the members of the family who have been authorized to accompany or join the migrant worker shall not be returned to their territory of origin because the migrant is unable to follow his or her occupation by reason of illness contracted or injury sustained subsequent to entry. With regard to migrant workers admitted on a permanent basis, the Committee wishes to emphasize that Article 8(1) does not make a distinction between permanent and temporary incapacity for work and is not limited to incapacity for work due to an industrial action or an occupational disease. The Committee requests the Government to confirm that the right of residence of permanent workers and their families is maintained in the event of permanent or temporary incapacity for work due to illness or accident, even if the worker is no longer capable of obtaining a stable and sufficient personal income.

Statistics. The Committee requests the Government to provide statistics on the number and origin of foreign workers employed in Belgium and to indicate the results of the relevant activities of the labour inspection services, in accordance with the provisions of the Convention.