Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

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

Immigration policy and legislation. The Committee notes that legislation on immigration has been the subject of a thorough reform of Belgian law, involving the adoption of several acts and royal orders which entered into force on 1 June 2007. It notes, in particular, the Act of 15 September 2006 amending the Act of 15 December 1980 on the entry, residence, establishment and expulsion of foreigners and the Act of 15 September 2006 reforming the Council of State and establishing the Review Council for Foreigners (“Conseil du contentieux des étrangers”). It also notes the adoption of the Act of 10 August 2005 amending various provisions in order to intensify action against the trafficking of human beings and certain practices concerning exploitative rental practices (“marchands de sommeil”) with hostels for the homeless; the Act of 26 May 2005 amending the Act of 23 May 1990 on the inter-state transfer of convicted persons and the Act of 15 December 1980 on the entry, residence, establishment and expulsion of foreigners; the Programme Act of 27 December 2004 and the Royal Order, further to the enlargement of the European Union, amending the Royal Order of 9 June 1999 implementing the Act of 30 April 1999 concerning the occupation of foreign workers. Moreover, the Committee notes that the asylum procedure has also undergone a major reform and the legislation concerning the occupation of foreign workers has been amended so that persons holding subsidiary protection status may enter the employment market without delay during their period of limited residence (Royal Order of 31 January 2007 amending section 17 of the Royal Order of 9 June 1999 implementing the Act of 30 April 1999 concerning the occupation of foreign workers). The Committee requests the Government to continue providing information on its national policy and legislation relating to immigration.

Article 6 of the Convention. Equal treatment and non-discrimination. Protection by law. The Committee notes with interest the adoption on 10 May 2007 of three new laws creating a general framework for combating any form of discrimination, including in employment and occupation. In this context, the Committee notes that section 7(2) of the Act of 20 July 1981, as amended in 2007, states that “any direct distinction based on nationality constitutes direct discrimination, unless it is objectively justified by a legitimate purpose and the means of achieving this objective are appropriate and necessary”. On no account, however, may a direct distinction based on nationality be justified where it is prohibited by European Union law. The Committee requests the Government to provide information on the practical application of the new laws of 10 May 2007 concerning discrimination in relation to the matters set forth in Article 6(1)(a)–(d) of the Convention. Please also specify the situations in which discrimination towards migrant workers would be considered justified under section 7(2) of the Act of 20 July 1981, as amended in 2007, in relation to the matters set forth in Article 6 of the Convention.

The Committee notes that the Centre for Equality and the Fight Against Racism (CELCR), established in 2003, aims to promote equality of opportunity and combat any form of distinction, exclusion, restriction or preference on the basis of numerous grounds, including nationality, race, religion and sex. The CELCR also has the task of monitoring the observance of the fundamental rights of foreigners, informing the public authorities on the nature and extent of migration flows and developing cooperation and dialogue with all public and private stakeholders concerned with policies for the reception and integration of immigrants. It also notes that the CELCR has adopted a “Three-year strategic plan 2008–10” which fixes clear objectives and provides for specific action in the areas of discrimination and migration. The Committee requests the Government to indicate the activities undertaken by the CELCR under the “Three-year strategic plan 2008–10” which aim to promote the application of the Convention. The Committee would also be grateful if the Government would provide information on the measures taken to ensure that women migrant workers, particularly foreign domestic employees, 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). Equal treatment with regard to accommodation. The Committee notes the Decree of 15 December 2006 amending the Decree of 15 July 1997 containing the Flemish Code on Housing. The Committee notes that under section 4(2) of the Decree of 15 July 1997 as amended, one of the aims of the policy on accommodation is to promote the integration of inhabitants into the community and equality of opportunity for everyone. However, the Committee notes that under section 92(3)(6) and section 95(1)(2), in order to have access to local authority housing, would-be tenants are obliged to demonstrate their willingness to learn Dutch. The Committee notes that it is for the Flemish Government to establish the rules for determining “willingness to learn Dutch” and persons who may be excluded from this obligation. In addition, section 102bis(3) imposes an administrative fine ranging from 25 to 5,000 euros for violations of section 92(3). The Committee notes from the explanatory notes to the law that the objective of this obligation is to promote integration and communication with a view to a better application of the local authority housing policy. The Committee recalls that Article 6(1)(a)(iii) of the Convention provides for equal treatment for migrant workers lawfully within the territory of the country and the Members’ own nationals as regards accommodation. Equality with regard to accommodation is aimed at ensuring that migrant workers have access to accommodation on the same terms as Belgian nationals. While noting that the Decree of 15 July 1997, as amended in 2006, applies to both nationals and non-nationals, the Committee wishes to be sure that the application of the aforementioned Decree in practice does not place migrant workers at a disadvantage in relation to nationals on the basis of their nationality or their ethnic or racial origin. In order to be able to examine whether the Decree of 15 July 1997 containing the Flemish Accommodation Code, as amended on 15 December 2006, is in full conformity, in law and in practice, with Article 6(1)(a)(iii) of the Convention, the Committee requests the Government to provide information on the rules established by the Flemish Government for determining “willingness to learn Dutch” and the number of migrant workers and nationals whose applications for local authority housing have been refused as a result of their unwillingness to learn Dutch.

Article 6(1)(d). Legal proceedings. With regard to the application of Chapter V of the Act of 30 April 1999 concerning the possibilities of appeal in the event of refusal or non-renewal of a work permit, the Committee notes that the majority of these cases are submitted by employers. The Committee also notes that the competent (regional) authority may, if need be, apply section 38(2) of the Royal Order of 9 June 1999, which provides for duly substantiated exemptions for individual cases meeting certain social or economic criteria. The Committee also notes that the new Review Council for Foreigners has sole competence for allowing appeals against individual decisions taken pursuant to the regulations relating to the entry, establishment and expulsion of foreigners. The Committee would be grateful if the Government would continue providing information on the following: (a) the application of Chapter V of the Act of 30 April 1999, particularly regarding appeals lodged by foreign workers; (b) the number and type of individual cases in which the competent authorities have issued exemptions and supplied or renewed a work permit for a foreign worker; and (c) the number of appeals lodged by foreign workers which have been processed by the Review Council for Foreigners.

Article 8. Non-return in the event of permanent incapacity for work. The Committee notes that section 21(3)(4) of the Act of 15 December 1980, as amended by the Act of 26 May 2005, now expressly prohibits the expulsion of “any foreign worker suffering from permanent incapacity for work within the meaning of section 24 of the Act of 10 April 1970 or section 35 of the Acts concerning compensation for occupational diseases, consolidated on 3 June 1970, where the occupational accident has taken place or the occupational disease has been contracted during the performance of work by a foreigner who is ordinarily resident in Belgium”, except in cases involving a serious breach of public order or of national security.