Les droits des étrangers face à la police? version anglaise

 

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Introduction The social crisis and the questioning of the welfare State to the advantage of the active welfare State and austerity policies leads to a downward trend and to individualism that discourages solidarities. When they emerge, they seem strange, suspicious and in fine condemnable. The closure of migration policies and the fury against those who attempt to open solidarity breccias are an obvious example. The State is also in crisis, in loss of power, legitimacy and credit. It is as if he made up his powerlessness on the social, economic or international plan, by hardening its speeches and repressive attitudes, an over-investment of its regulatory functions related to the control of populations and of the territory, in other words of its police function. A function sustained by a speech and a safe obsession that lead to see security issues, physical and non-social, as main concerns of the population and of the politics. This unpleasant context is conducive to a bigger weakening of the foreign residents in Belgium, fortiori when they do not have a residence permit. The field work of the Regional Picardy Lay of the CAL is especially made to give to the migrant populations present in its territory accurate information about their rights, in full respect of their human dignity and guaranteeing them the complete confidentiality about their administrative situation. If the manual of Mathieu Beys is a valuable tool for field workers and citizens who support and help these people every day, it is even more valuable for the main concerned people, the foreigners themselves. QUELS DROITS POLICE Manuel juridique et pratique Préface d’Alexis Deswaef Président de la Ligue des droits de l’Homme ? Mathieu Beys FACE À LA Couleur livres By synthesis, the translation and the distribution of the chapter of this manual dedicated to the rights of the foreigners, Regional Picardy Lay intends to contribute to the enjoyment and the protection of the fundamental rights of all human beings and shows its support to the people among the most vulnerable ones in our society. To achieve this, working and exchanging sessions are organized with groups of people in precarious living, to equip them the best way in terms of fundamental rights. This work also has a political dimension  : by this action, the Regional Picardy Lay wishes to express its strong disagreement with the largely safe answer given to the issues of asylum and migration.  3

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SuMMAry 1. FOREIGNERS AND THE POLICE 2. BORDER CONTROLS 3. INVESTIGATIONS CONCERNING MARRIAGES OF CONVENIENCE 4. ARRESTS AND ADMINISTRATIVE DETENTION OF THE «UNDOCUMENTED MIGRANTS» 5. THE USE OF FORCE IN CASE OF EXPULSION 6. UNDOCUMENTED MIGRANTS AND VICTIMS OF OFFENCES 5 9 15 21 31 39 7. REACT TO DEFEND THE RIGHTS OF THE FOREIGNERS 41 1. Foreigners and the police 5 4

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YES, in theory, I have the same rights face to the police than any citizen if I’m a foreigner, even in illegal stay. «Undocumented migrants» doesn’t mean without rights. All human rights described are also applied in principle to the «Undocumented migrants»: prohibition of degrading treatment and arbitrary detention, right to private and family life, etc. BUT, if I don’t have the residence permit in Belgium, I might risk, at each encounter with a policeman, including if I contact them to complaint, an arrest, an order to leave the territory, a detention in a detention center and an expulsion to my home country (or another country that accepts me). 6 Do I have the same rights face to the police if I’m a foreigner or an undocumented migrant ? Am I an offender simply because I am an « Undocumented migrant » ? YES, in theory I might risk a conviction of eight days to three months in jail, a fine and a criminal record only because I am in an illegally stay in Belgium (that is to say if I am there without having to right for it, that is not always the case if I don’t have with me my residence permit or if he is out-of-date or in waiting of renewal). BUT, in practice, I will rarely be condemned only for my illegal stay. The State has no right to condemn me or put me in jail for illegal stay without first having offered me a voluntary return or without using other methods (such as placement in a detention center) to try to make me leave, eventually by force.  Tiré du manuel de Mathieu Beys 7

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2. Border controls 9

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At which borders can I be controlled ? Policemen can control me, without having to justify, if I tempt to cross the external borders of the Schengen area. There are thirteen passage points at the external borders in Belgium: six airports (Brussels National, Deurne, Ostende, Gosselies, Bierset, Wevelgem), six ports (Anvers, Gand, Nieuport, Blankenberge, Ostende, Zeebruge) and the Eurostar terminal at the Brussels Midi’s station. In principle (and unless waived), the policemen can’t make a systematic control if I cross an internal border (land borders with France, Germany, Luxembourg and the Netherlands) or if I get out of a train or plane from the Schengen area. BUT, the controls at the internal borders may exceptionally be reintroduced in cases of «serious threat to public policy or threat to internal security» for a maximal period of thirty days or more if the «foreseeable duration of the serious threat» is more than thirty days. The State may extend this period if the threat continues and must inform the public of its decision to reintroduce the control, unless imperious reasons of security are against it. Belgium has already reintroduced this particular type of controls during football championship of the Euro 2000 to monitor supporters. Furthermore, the police can always control me unexpectedly within the territory in the border areas (if it is not a systematic control at borders), or in a port or airport, for example because the police considers me as a suspect or has received an order for public security reasons or of foreigners control.   Tiré du manuel de Mathieu Beys 10 11

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It depends if I have the nationality of one of those 28 EU countries or if I am a close member of the family of an EU citizen (spouse or registered partner, child of less than 21 years old or at charge of the citizen or spouse or partner, parent at charge of the EU citizen or his spouse or partner) or not. If I am a citizen of EU or close member of the family of a EU’s citizen, (regardless my nationality), the police can only realize a «minimal control», that is to say a simple and fast control of the document’s validity that allows me to cross the borders. The police can check up if I am the same person that the person mentioned on the document and that this one isn’t false. The police can consult national databases like the BNG (General National databases or Banque de données national générale) and European like the SIS (Système d’information de Schengen or System Information of Schengen) to check up if I don’t represent a menace, actual and sufficiently serious to threat to internal security, public policy or international relations», but this consultation can’t be systematic. If I am not a citizen of EU or close member of the family of an EU’s citizen, the police can realize a “maximal control” upon both entry and exit of the Schengen area.  What can the police control when I cross the borders ? They should also check: • that I have not exceeded “the maximum duration of authorized stay”; •where I am in and out of the Schengen area ( stamps in my passport) ; •the evidence of the purpose of my stay (invitation letter for family or touristic visit, the evidence of my business contacts…); •the evidence of enough livelihoods •if my means of transport, the object that I am transporting or my person “aren’t likely to jeopardize (means represent a menace) the public policy, public security, public health or international relations of Member State” by consulting the System Information of Schengen database “if necessary”.  Tiré du manuel de Mathieu Beys 12 13

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Can they take my fingerprints during a border control ? YES, if I’m asking asylum or if I’ve a shortterm Schengen visa, police can check up if my fingerprints match with those of the person who received the visa. These fingerprints have been taken at the embassy and are in the information system about visas, the «VIS (Visa’s Information System)». 14 3. Investigations concerning marriages of convenience 15

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Policemen can launch an investigation if they suspect that «the intention of one or both (future) spouses are clearly not the creation of a sustainable living but merely seeks to obtain an advantage in terms of stay.» That’s what we call a «white marriage», «a mock wedding» or «a marriage of convenience». The investigation can be used to: • Condemn me one month to three years in prison and a fine, • Refuse the wedding or the legal cohabitation in project, • Cancel afterwards a marriage or legal cohabitation. In practice, policemen collect information especially beside the neighbouring, the owner, the concierge, the postman, the traders, the municipal office, my family (for example my ex, my children, the witnesses of my marriage...). 16 In which cases can we launch an investigation concerning my marital relationship ? How the interview is conducted by the policemen if I’m suspected of marriage of convenience ? The policemen often come at home to verify the life conditions and the reality of my cohabitation. I can refuse them and they don’t have the right to come in with force but my refusal could lead to a refusal to celebrate my marriage or my legal cohabitation. I’m an offender if I have concluded or attempted to conclude a marriage or a cohabitation of convenience. The interview should be conducted as a hearing of a suspect and I should consult a lawyer before being questioned.   Tiré du manuel de Mathieu Beys 17

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The police could also ask: • How and when I met my spouse • Who has introduced us to each other • Who are the members of his family and what they’re doing in life • When and how we talked about marriage or legal cohabitation for the first time • Which dish, colour, book, movie is his favourite? • If a payment was done to conclude my relationship • If we had sexual relationships, how often and when for the last time • What are each other’s incomes and how we deal with our household expenses They could ask the same questions to my future spouse/ partner. If there are big differences, the wedding or the legal cohabitation can be refused or cancelled. As in any examination, I better not sign the statement unless I read it at my leisure and I fully agree with the content. I better ask a copy of the statement but the policemen can wait a month before giving it to me. 18 Am I obliged to answer to the policemen’s questions about my relationship ? NO, I’m not obliged to answer because my answers could lead to a conviction by a court. BUT, in practice, if I refuse they could conclude that my relationship is simulated, what can lead to a refusal or cancellation of the marriage or legal cohabitation.  Tiré du manuel de Mathieu Beys 19

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Can I be plugged if there is an investigation against me for a white wedding ? 4. Arrests and administrative detention of the « undocumented migrants » 21 YES policemen can plug me in the BNG (General National Data Bank) if a magistrate asks it as part of an investigation on my project of wedding or legal cohabitation. A postponement or a refusal of marriage or legal cohabitation will be included in the population register, especially to avoid that I’ll tempt to try my luck in another town after a first refusal. 20

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When is it possible to arrest me as a foreigner ? Can we force my door just because I’m an undocumented migrant ? In principle, NO, if I stay at home after receiving an order to leave the territory, I must expect to have the visit of policemen. If they find me at home, they could arrest me to bring me to a detention centre. If I refuse to open my door, they can’t use force to enter except in emergencies or if they have a decision of the judge. But they can write a report to the Immigration Office that can write down my refusal and if I’m arrested thereafter, use it to place me directly in a detention centre. It could happen that the police use trick to enter in my home saying, for example, that they’re coming for a non-existent gas leak, what is illegal.  Tiré du manuel de Mathieu Beys If I’m a foreigner, the police can arrest me: • In all cases leading to the arrest of a Belgian (person) or foreigner • If I don’t have with me a piece of identity or a residence permit in order. 22 23

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Can the policemen attract me under false pretences to the police office to facilitate my expulsion ? NO, If I’m a foreigner in illegal stay and that I’m not pursued for a serious crime, it’s forbidden to trap me giving me a false and trivial reason (for example «complete your file» to attract me to the police office and then to arrest me, lock me and expel me in my home country (or another country that accepts me). It’s forbidden to consciously trap a person, even in an illegal situation with the purpose of a convening, to better deprive them of their freedom. 24 Can the police arrest my children at school ? YES, nothing forbids the police to come arrest my children at school for illegal stay. The policemen should: • Notify the school principal before their intervention and involve him in the execution of the mission «to provide a better support of the child» • Be in civil and show their police card • Not occur during school hours • If possible to be accompanied by another member of the family Policemen can’t enter within the school without an authorisation of the school principal.  Tiré du manuel de Mathieu Beys 25

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If the policemen arrest me because I don’t have my papers in order, they can only keep me the necessary time to send a report to the Immigration Office and to wait its decision. Policemen must release me as soon as they are aware that I have the right to stay in Belgium or that the Immigration Office doesn’t want to lock me. My detention at the police office can last maximum 24 hours, twice longer than an administrative arrest for a Belgian. If the Immigration Office doesn’t take any decision in that period, I must be released. I better not sign the deprivation of liberty register which contains detention hours that don’t correspond to the reality. Depending the decision of the Immigration Office, policemen could: • Let me go without order to leave the territory for example because an asylum procedure or of regularisation is launched • Deliver me an order to leave the territory with a specified period (maximum 30days) and release me • Lead me to a detention centre with an order to leave the territory or confide me to the «Collaborating safety drivers» of the Immigration Office • Lead me to the airport with an order to leave the territory 26 How much time can they arrest me if I don’t have my papers in order ? To which information have I the right concerning my arrest ? I have the right to know the reasons of my arrest in a short time and in a language that I understand. In practice, this right is rarely respected by the policemen that often simply give me to sign for the receipt of confinement of the Immigration Office written in French or Dutch. I’ll receive in principle more information at my arrival at the detention centre but there is little chance that I could have an interpreter. To avoid any misunderstanding, I better not sign any document. The fact to refuse to sign a decision doesn’t prevent me to get a copy of it.  Tiré du manuel de Mathieu Beys 27

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What are my rights during my arrest at the police office ? As an arrested foreigner for a check of my situation or in waiting of an order to leave the territory, I have the same rights that each arrested person. I can also: • Prevent someone of trust of my arrest • Have a free medical consultation • Drink, eat at the normal meal hours and have access to the toilets. In principle, I’ll don’t have the right to a lawyer’s assistance but nothing prevents me to ask for one. Before my expulsion, I have the right to pack my bags and to receive an inventory of the police describing objects that I could take and objects that I let in Belgium with information on the safe taken so that I can retrieve them later. 28 Am I obliged to answer to the questions of the policemen ? NO, I’ve the right to keep silence like in any interview. If I don’t have identity documents, Immigration Office should know where I’m from and negotiate with my country of origin before expelling me. So the policemen will ask me questions about who I am and where I’m from. They could also ask to an interpreter to detect my origin from the language I speak and my accent (it happens for example, that foreigners who pretend to be Palestinian are considered as Moroccans, Tunisians or Algerians).  Tiré du manuel de Mathieu Beys 29

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