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On 16 July 2026, the Belgian Constitutional Court delivered its judgment no. 89/2026 concerning two actions for annulment brought by several organisations against provisions of the Act of 12 May 2024, which introduced measures aimed at strengthening the removal of third-country nationals staying irregularly in Belgium. The contested measures concerned mandatory medical examinations for the purpose of removal, presumptions of absconding in Dublin transfer procedures, the obligation to cooperate with return procedures and alternatives to detention.

First, the Court raised doubts as to whether mandatory medical examinations imposed for the purpose of enforcing return decisions are compatible with Directive 2008/115/EC (the ''Return Directive''). It observed that a compulsory examination may affect human dignity and interfere with physical integrity, particularly where it can be imposed against the person's will for non-therapeutic purposes and without requiring the authorities to provide alternatives. It therefore referred two questions to the Court of Justice of the European Union (CJEU) concerning the compatibility of the measure with the Return Directive and the Charter of Fundamental Rights of the European Union.

Second, the Court distinguished between circumstances indicating an intention to abscond from the authorities and a failure to cooperate with the transfer procedure. It considered that a presumption of absconding may be justified where a person fails to report to the assigned reception facility or leaves it without notifying the Immigration Office of an address within three working days, while allowing the person to subsequently demonstrate that they did not intend to abscond from the authorities. By contrast, failure to cooperate with a mandatory medical examination or an intensive support programme does not justify such a presumption where the person remains at their place of residence. The Court therefore annulled the relevant provisions.

Third, the Court clarified that the obligation to cooperate does not apply to a person who has lodged an appeal with suspensive effect against a return decision and is consequently entitled to remain in Belgium pending that appeal.

Lastly, the Court held that even where alternatives to detention are presumed to be ineffective, the authorities must carry out a specific and individual assessment before resorting to detention. It further annulled the legislation insofar as it provided for only two types of alternative measures and did not include the possibility of requiring the person concerned to surrender their identity or travel documents.
 

On 24 June 2026, the European Court of Human Rights (ECtHR) communicated the application of G.B. v. the Netherlands (Application no. 7740/26). The case concerns the alleged risk of ill-treatment of the applicant if returned to her country of origin, and the Dutch authorities’ alleged failure to properly assess her asylum application.

The applicant, a national of the Democratic Republic of the Congo (DRC), applied for international protection in the Netherlands, alleging that she had been subjected to repeated sexual violence in the DRC and during her journey to the Netherlands. Her asylum application was rejected after the domestic authorities considered her account to be inconsistent, incoherent and vague. The applicant argued that these inconsistencies resulted from trauma caused by rape and abuse and submitted medical records documenting psychological and physical symptoms consistent with her allegations. Although she requested a forensic medical examination in accordance with the Istanbul Protocol, the domestic authorities considered such an examination unnecessary.

The Court asked the parties, inter alia, whether the Dutch authorities complied with their procedural obligations under Article 3 European Convention on Human Rights (ECHR) when assessing the applicant’s asylum claim, and whether they adequately took into account the possible impact of trauma on her ability to provide credible, consistent and detailed statements.

On 17 March 2026, the Court of Cassation (Hof van Cassatie) dismissed an appeal against a judgment of the Brussels Court of Appeal (Hof van beroep te Brussel) upholding the detention of an asylum applicant at the border following the use of forged travel documents.

The applicant, a third-country national, attempted to enter Belgium using false travel documents and applied for international protection upon arrival at the border. He was consecutively placed in detention in a border facility pending a decision on his entry or possible return. The applicant challenged his detention, arguing that the use of false documents is inherent to the situation of asylum applicants and should be regarded as a failure to comply with entry formalities, which cannot itself justify detention under the Directive 2013/33/EU (the Reception Directive). He also requested to refer a preliminary question on this matter to the Court of Justice of European Union.

The Court of Cassation rejected those arguments and confirmed that, while under Article 8(1) of the Reception Directive an applicant for international protection may not be detained solely because of their asylum application, detention is permitted where necessary, including in order to decide on the right to enter the territory in the context of a border procedure (Article 8(3)(c)). The Court held that, in assessing the lawfulness of detention, national authorities may take into account the use of false documents and that they are not required to treat such conduct as merely a failure to comply with entry formalities or as inherent to the status of an asylum applicant. The Court further upheld the findings of the lower court that the detention was based on an individual assessment and was necessary to ensure the effectiveness of border control and the possibility of return. Finally, it found that the request for a preliminary ruling was not relevant and it dismissed the cassation appeal.

Unofficial translation by the EWLU team