The foundations of a Belgian refugee policy laid, 1952-1959

2In 1949, amidst a climate in which national security was paramount due to the exploding Cold War, the executive power proposed that Parliament codify a new alien law that gave the aliens’ police statutory power to combat any threat to national security by foreigners. The legislative power adamantly refused to make the “blank check” the executive power had obtained in September 1939 a lasting arrangement. The legislator insisted that not only the protection of resident aliens, but also the exceptional favors for refugees must be restored. The alien law of 1952 integrated those provisions, but it remained a law that granted the executive power extensive powers over the population of foreign nationality in Belgium. While the alien legislation before September 1939 did not provide any punishment for unauthorized stay on Belgian territory, the alien law of 1952 punished this with a prison term of up to six months. The aliens’ police could expel any recent immigrant whom they considered a threat to public order, national security, and even the national economy. Resident aliens could not be expelled because of a threat to the national economy and some safeguards were built into the law to make the expulsion of a resident alien an exceptional decision. An immigrant could only acquire this status of resident alien after at least five years stay in the country.3

3In their first draft of this alien law the legislature proposed the creation of an advisory commission composed of three persons among them une personnalité proposée par la Croix-Rouge de Belgique that would give non-binding advice to the minister of Justice as to whether to consider asylum applicants refugees. This proposal was aligned to the pre-war model with input of civil society organizations, but in an important innovation this commission would also advise the Ministry of Justice in the case of the expulsion of refugees (and resident aliens).4 The aliens’ police strongly opposed this interference in what they considered their core authority: This interference would hamper any decisive action against dangerous aliens.5

4International developments would radically change this bill. Belgium, as a liberal country which counted on international cooperation to counterbalance the little weight it could exercise on international affairs, had been an important promotor of the international refugee regime. As Ben-Nun has documented, the Belgian diplomatic contribution as well to the universal scope of this regime as to the strength of UNHCR as guarantor for the implementation of this Convention has been important.6 With the law of 26 June 1953, Belgium was also one of the first countries to ratify the Convention of Geneva, which protected refugees as people who as a result of events occurring before 1 January 1951 had a well-founded fear of being persecuted because of their race, nationality, political and religious beliefs, or belonging to a social group.7 Protection of refugees was fully embedded in Belgian legislation with the alien law of 1952. In accordance with the 1951 Convention, this law vested the authority to determine refugee status in the Minister of Foreign Affairs. Refugee policy had become an obligation resulting from an international commitment and therefore no longer the Ministry of Justice, but of Foreign Affairs became in charge. In February 1954, the Minister of Foreign Affairs Paul van Zeeland (16/08/1950-24/04/1954), a politician who was sensitive to refugee issues, delegated the authority to determine refugee status to the Representative of the UNHCR in Belgium.8

5The UNHCR, which was just created, had lobbied strongly for this authority. The Convention of Geneva had left the asylum procedure to the discretionary authority of the national authorities. As a new organization of the UN, UNHCR wanted to create a precedent in Belgium, which was one of the first countries to implement a Refugee Status Determination Procedure. Van Heuven Goedhart, the first High Commissioner of UNHCR, insisted strongly on the Belgian delegates during the ninth session of the General Council of the UNHCR and during the second session of the Consultative Commission to give UNHCR full authority in recognition of refugees.9 The Socialists from the opposition ranks applauded the transfer of competence to UNHCR, as they had been worried that the aliens’ police and the Minister of Justice yielded too extensive power.10 That the national interest would be compromised by the outsourcing of the recognition of refugees to the Representative of the UNHCR in Belgium was minimalized by UNHCR agreeing to nominate a (retired) civil servant of the Ministry of Foreign Affairs as first representative of UNHCR in Belgium.11

6The Ministry of Justice had not accepted this loss of power in matters of refugee policy. They succeeded to vest the authority to recognize refugees also with the aliens’ police in the alien law of 1952 with the argument that once UNHCR ceased to exist there would have to be an alternative. This newly created international refugee organization would, according to the Ministry of Justice, not last. According to the Ministry of Justice it was only meant to be a temporary solution to the refugee problem created by the Second World War and therefor the refugee definition of the Convention of Geneva only referred to persecution due to events prior to 1951.12 The legislature did not want the aliens’ police to decide autonomously on asylum requests and therefore the aliens’ police was obliged to seek non-binding advice from the advisory commission before they took a final decision on an asylum request.13 Thus, the advisory commission mentioned in the first draft of the new alien law remained on the books. The composition of the commission was slightly different than in the original proposal. The commission was presided by a magistrate, and he was assisted by a barrister and one representative of a non-governmental Belgian organization chosen by the asylum seeker concerned from a panel (or appropriated ex officio by the Minister of Justice). These representatives were nominated for three years.14

7Two parallel asylum procedures were thus codified in the alien law of 1952, and asylum seekers were given the choice. It was in the best interest of the refugee to be recognized by UNHCR as protection granted on the basis of the Convention of Geneva entailed a number of additional rights which the refugee recognized solely on Belgian law would be deprived of. Interdepartmental wrangling started about which procedure took precedence. This lasted for more than a year and only in November 1953 was it clearly stipulated that the UNHCR had precedence in deciding about recognizing refugees.15 Only asylum seekers who explicitly stated they wanted to be recognized as refugees by the Belgian authorities would be handled by the Ministry of Justice.16 The Minister of Foreign Affairs (and UNHCR) won the day, but the aliens’ police had still large control over the domain of refugee policy. The Convention of Geneva had stipulated that the first country of asylum was in charge. Therefore, refugees for whom Belgium was not the first country of asylum had to be refused access to the asylum procedure and this eligibility decision was under the purview of the aliens’ police. It seems the aliens’ police interpreted its eligibility authority extensively as they also denied access to the asylum procedure to those asylum seekers whose requests they considered to be unfounded claims.17

8Once the aliens’ police had declared an asylum application eligible and the UNHCR had recognized an asylum seeker as refugee the person obtained a leave to remain. However, the Minister of Justice could still withdraw this residence permit if the refugee was considered a threat to public order and national security. In that case the alien law of 1952 required the Minister of Justice to ask for advice at the advisory commission. Also, other aliens were protected in this manner against a swift expulsion decision, but only after they had acquired residency status, which demanded an uninterrupted stay of at least five years. The advisory commission was thus given authority to hear the refugee (or resident alien) to be expelled and give a mandatory, but non-binding advice on the proposed decision. The alien law of 1952 also mentioned, but not in a straightforward manner, that the Minister of Justice could not expel foreigners while their asylum request was being investigated without consulting the advisory commission.18 The sovereign power of the state to deny access to its territory or to expel foreigners was thus slightly restricted as part of Belgium’s commitment to the international refugee regime. Refugees and asylum seekers qualified for a similar, rather weak protection against expulsion.

9The alien law of 1952 and its executive orders codified refugee policy. Still, the asylum procedure was only explicit for those who entered Belgium in a regular manner. They had to apply for protection within a month after their arrival on Belgian territory. Significantly enough, in case of irregular immigrants no regulations were issued. Although the Convention of Geneva had provided for a pardon for irregular immigrants who claimed they needed protection, the Belgian government considered that only countries bordering the Communist Bloc had to provide the opportunity for irregular immigrants to apply for asylum. Belgium, not being a frontline state, did not have to pardon irregular immigration, but only provide the opportunity for requesting asylum for those who entered the country in a regular manner.19

10As graph 1 indicates, the immigration of refugees to Belgium in the 1950s was organized by the Belgian authorities, either as resettlement or as labor recruitment programs.20 The only true resettlement program was the opportunity granted at the end of 1956 to three thousand Hungarian refugees to resettle in Belgium under no condition whatsoever. The trains who had brought these refugees from Hungary into Vienna were given the authorization to move on to Belgium. In Belgium these Hungarians could start a job of their own choosing. This was a generous effort of burden sharing with Austria as the first country of asylum. Most other refugees who came to Belgium in the 1950s were called upon to supplement the shortages in semi-skilled and unskilled labor. In particular, in times of economic upturn, the Belgian economy needed foreign labor to supplement the workforce in heavy industry. Labor recruiting in German, Austrian, Italian, Yugoslavian, and Greek refugee camps had brought nearly five thousand refugees, workers and their families, to Belgium.21 For three years these Albanian, Hungarian, Polish refugees were attached to the mines, quarries, and steel factories, segments of the labor market Belgian labor avoided.

Figure 1. – Annual number of persons applying for asylum in Belgium 1952-1987.

11Between 1952 and 1957 a total of two thousand immigrants, nearly exclusively Spaniards and East Europeans, had spontaneously applied for asylum. The aliens’ police considered the possibility of requesting asylum largely as a loophole in the legislation enabling immigrants who had become undesirable to stay put. A high level civil servant of the aliens’ police made this clear to the Minister of Justice in 1958: “Si l’admission d’un étranger est relativement aisée, son éloignement par contre est malaisé étant donné…il mettra tout en oeuvre pour rester dans un pays où la vie est plus facile et ce sous de multiples pretextes… s’il s’agit de ressortissants de pays de l’Est, de l’Europe et d’Espagne, ils revendiqueront la qualité de réfugiés politiques pour ne pas devoir rentrer dans leur pays […].”22 In the eyes of the aliens’ police, East Europeans and Spaniards whom they considered unwanted requested asylum, which prevented the aliens’ police from expelling them. It is unclear how many of the two thousand asylum seekers did so because of the threat of expulsion. There were also spontaneous asylum applications of foreigners who did not have the necessary documents to enter Belgium. They could apply for asylum at the border or they could immigrate irregularly and then request asylum. In 1957 about a thousand Hungarians came to Belgium on their own accord and it seems they applied spontaneously for asylum at the Belgian branch of UNHCR in Brussels.23

12The liberalization of the East European communist regimes after the death of Stalin enabled more people to travel abroad, and some of these visa holders applied for asylum in Belgium. There were about a thousand spontaneous asylum applications a year after 1957, either immigrants who had arrived in a regular manner or who were undocumented. The extent to which the border police enabled immigrants to request asylum at the border is not clear to us. In any case, these immigrants were totally dependent on the border authorities to enable them to apply for asylum There were no doubt applicants who were denied access to the asylum procedure because the aliens’ police considered their asylum requests unfounded. For irregular immigrants on Belgian territory the aliens’ police could proceed in the same manner. Certainly, some of them could apply for asylum, although irregular immigrants’ access to the asylum procedure was not explicitly offered. UNHCR did not report problems so it seems that the aliens’ police enabled irregular immigrants on Belgian soil who expressed interest in requesting asylum to do so.24 However, as will be clear in the following chapter, not all irregular immigrants were aware of the possibility of asking for protection and even if refugees did request protection, they were not sure that their case would be investigated by UNHCR. The administrative discretion only became a politically decisive issue in 1959, when a few Algerians who had immigrated in an irregular manner spontaneously requested asylum.

13Can Algerian “terrorists” qualify for refugee status? Algerians fled to Belgium due to the brutality of the French authorities in suppressing the independence movement active in France itself, but also because of the internal struggle within the independence movement. The French embassy in Brussels strongly insisted that the Belgian authorities refuse admission, in particular to Front de libération nationale (FLN) activists, and certainly not tolerate any political activities on behalf of the cause of Algerian independence. The Belgian Socialist-Liberal government, eager not to jeopardize the relations with the French authorities, cooperated fully. In the second half of the 1950s numerous Algerians, members of the FLN, or Mouvement national algérien (MNA) were expelled and turned over to the French authorities. The collusion between the Belgian and French authorities, including interrogations on Belgian soil of Algerian militants by French police and expulsions that were in fact informal extraditions, were strongly contested by an anticolonial wing of the left. Questions about the legality of this cooperation were even raised in Parliament.25

14The criticism was heeded by the government. In October 1957 the Minister of Justice Albert Lilar (23/04/1954-26/06/1958) decided to stop the informal extradition of Algerian nationalists to the French authorities. Granting asylum to Algerians was not envisaged.26 Any Algerian staying in Belgium without due authorization had to leave, but if he expressed the desire not to be expelled to France, he would be given the choice of the border by which he left Belgium. Those Algerians who did not express any reservation on being expelled to France would no longer be handed over to the French authorities, but rather be brought close to the French border so that they could enter French territory on their own accord. These instructions were not to be made public, and the minister insisted that these instructions were to be executed discretely.27 Lilar’s prudent policy was continued by his successor Pierre Harmel in his short-lived Catholic government. Harmel even insisted, probably due to protests, on more vigilance of the aliens’ police not to informally extradite any Algerian for whom there could be the least indication that the French authorities would incarcerate this person for participation in the independence struggle of Algeria.28

15This prudence does not mean that Algerian nationalists were no longer extradited to France. Due to the change of Belgian policy the French authorities resorted to formal extradition requests to have these FLN members in France behind bars. About fifteen Algerians, members of the FLN, were formally extradited. These were formal extraditions in which the Belgian courts had advised favorably without raising the political offence exception.29 We ignore whether Lilar or Harmel had agreed to French extradition requests consented by the courts, but Laurent Merchiers of the Liberal Party who had become Minister of Justice in November 6, 1958 had no qualms about extraditing the FLN activist Mohamed Arbaoui to France in October 1959. Arbaoui was arrested by the Belgian police on 19 April 1959 for illegal possession of weapons. Laurent Merchiers decided on 1 July 1959 to expel Arbaoui as he was considered a danger for public order, but the French requested his extradition as he was accused of attempted murder. Formal extradition demanded that the Court of Appeal be consulted, and this court advised positively on the extradition request. In the meantime, the French authorities had put strong pressure on Merchiers to strengthen border control to prevent an infiltration of Algerian nationalists into Belgium and to prohibit any kind of FLN activism in Belgium. They also gave Merchiers a list of FLN militants in Belgium and strongly advised him to expel them all.30 Indeed, many of the FLN activists were expelled.31

16Shortly after his extradition in October 1959 Mohamed Arbaoui succeeded in escaping from the prison in Avesnes and returned to Belgium where he was arrested in February 1960 by the Belgian police because of illegal immigration.32 This time would turn out different, most importantly was that he got legal advice. On 13 February 1960 Mohamed Arbaoui’s lawyer Marc De Kock, a recently graduated jurist, informed the Minister of Justice Merchiers that Arbaoui had requested asylum at the UNHCR office in Brussels.33 Publicity was given to his asylum application as the press reported on this first asylum application of an Algerian nationalist.34 The second Algerian asylum seeker was Moussa Boudiaf, the brother of Mohamed Boudiaf, minister of Foreign Affairs of the Gouvernement provisoire de la République algérienne (GPRA). He had been arrested in France in September 1957, but succeeded in fleeing from a hospital prison in January 1960 to Belgium where he applied for asylum on 18 February 1960. Moussa Boudiaf was also represented by Marc De Kock.35 The Belgian authorities granted Moussa Boudiaf a provisional residence permit pending the decision of UNHCR on his asylum request.36

17However, Foreign Affairs considered that the protection of Algerian refugees did not fall within the recognition authority of UNHCR in Belgium as the 1951 Convention covered only persecution due to events prior to the first of January 1951. Foreign Affairs informed the Ministry of Justice that they should investigate the cases themselves and ask the Consultative Commission for Aliens for its opinion.37 The Ministry of Justice did not heed this advice and pressurized UNHCR to make a decision. It seems the Ministry of Justice did not want to assume any responsibility for these asylum requests.

18According to the Belgian Ministry of Foreign Affairs, UNHCR had only a mandate to assist materially the Algerian refugees in Tunisia and Morocco but had no mandate to recognize Algerian refugees.38 This was only partly correct as indeed UNHCR had expanded the objectives of its mandate beyond legal protection by getting authorization of the United Nations General Council in 1958 under the “good offices” section of the UNHCR statute to provide material assistance to persons in situations similar to those of refugees. By the end of 1958 High Commissioner Auguste Lindt had used this possibility to respond to the request of Morocco and Tunisia to assist Algerian refugees in both countries. UNHCR had determined, however, that many among those Algerians in Morocco and Tunisia were refugees, which UNHCR had a mandate to protect under Article 6B of its Statute. In the UNHCR Statute defining the competence of UNHCR two almost identical definitions of refugees were used; the only distinction was that article 6A contained the dateline of 1 January 1951 as end date for events that created refugees whereas article 6B referred to refugees in general terms. UNHCR considered that those who became refugees as a result of events after 1 January 1951, including the Algerian refugees, were also within its mandate. However, UNHCR did not press that issue in the Algerian case as this would have provoked the anger of France, which strongly opposed the internationalization of the Algerian conflict. France maintained that the conflict in Algeria was an internal affair and that the United Nations had no business in it. France had claimed that these people were French citizens who did not have to be assisted as they could return home to French Algeria. However, they did not object to the relief operation as long as UNHCR only provided material assistance. UNHCR also had to take into account former colonies that upon independence had become new members of the UN and that sympathized with the Algerian independence movement.39 UNHCR pursued a tightrope policy; the asylum request of Algerians in Belgium was a poisoned chalice to the organization. To recognize the Algerian asylum seekers in Belgium as refugees would be a public statement that France, a permanent member of the UN Security Council, would certainly not appreciate. On the other hand, UNHCR never stated that the Algerian refugees were refugees to which the Convention did not apply.40 In the Fifteenth session of the General Assembly of UNHCR on 5 December 1960 the High Commissioner even declared that Algerian refugees who had requested asylum in European countries had all been given asylum and were entitled to legal protection under its mandate.41 UNHCR as a UN organization knew that the decolonization process meant that refugee protection could not be limited to Europeans alone. UNHCR walked a thin line.

19UNHCR handled the asylum requests of the Algerians in Belgium very cautiously. In March 1960 Auguste Lindt, the High Commissioner, had a conversation with Kuypers, director-general of the Ministry of Foreign Affairs, in which he outlined the strategy of the UNHCR not to adjudicate these cases. He advised the Belgian authorities to tolerate these Algerians who needed protection without deciding formally on their asylum request. In this way no official judgment of French policy was necessary and the Algerian independence movement and its allies would not be estranged. According to UNHCR this was also the strategy of Swiss and German authorities. This was a rather positive reading of the Swiss and even German authorities’ policy mainly aimed at keeping the Algerians out. However, the Germans indeed tolerated Algerians, but granted them only short-term residence permits under the condition that they abstain from political activities. When they did not abide by that rule, they risked being expelled, but refoulement to France was explicitly excluded.42

20The French authorities introduced a new extradition request for Mohamed Arbaoui, based on the same facts as those for which extradition had been granted in 1959. However, Marc De Kock, his lawyer, opposed this extradition request with the argument that his crime should be considered a political offence. He argued that it was treated as such in France as they were punished by special tribunals with the possibility of the death penalty.43 Although the Court of First Instance agreed to the political qualification of the crime, the higher courts up to the Supreme court on 22 June 1960 denied that his crime was of a political nature.44 Another appeal was still pending. De Kock had also appealed at the Council of State in its capacity to verify the legality of administrative decisions. Mercier had decided on 21 February 1960 to expel Mohamed Arbaoui, but also had denied him access to the Belgian asylum procedure without consulting the consultative commission, according to Marc de Kock, in breach of the alien law of 1952.45

21In the meantime, public opinion, especially on the left, began to disapprove of the brutality of the French policy toward the Algerians. The struggle of the FLN for Algerian independence gained sympathy in Belgium. The assassination of Akli Aïssiou, an Algerian medical student at Brussels university in broad daylight in Ixelles because of being the presumed leader of the FLN in Belgium increased the support for the FLN. The murder of a Belgian sympathizer of the Algerian cause with a bomb hidden in a book, also in March 1960, added to this aversion for the violent French policy toward the Algerian independence movement. In December 1960 the Socialist Party, at that time an opposition party, unanimously voted a resolution in its Congress in which the Minister of Justice was formally requested not to extradite Arbaoui to France.46

22At that time another case very similar to Mohamed Arbaoui had come to public attention. Three Algerian FLN members, Ouakli Rabah, Zaouche Tahar, and Abdi Arezki had escaped from the French Valenciennes prison and had fled to Belgium where they were arrested on 23 April 1960. The French requested their extradition. They were accused of the murder of a member of the MNA, but the French also demanded their extradition as they had opened fire on policemen in a prison camp in Raismes. Marc De Kock probably was commissioned by the FLN to defend their case and on 26 April 1960 he showed up at the prison to prepare with his clients, surprised to have a lawyer, their defense.47 In court, Marc de Kock appealed the extradition decision based on the political offence clause. In addition, on 26 April 1960 the three Algerians informed the Minister of Justice that they had applied for asylum. Minister Merchiers considered them a threat to public order and decided on 5 May to deny these three Algerians asylum as well and to expel them. Marc De Kock appealed the decision to declare their asylum request null and void to the Council of State on 17 May 1960.48 Marc De Kock continued his opposition to their extradition up to the Supreme court, but the judiciary consented to their extradition with the final verdict of the Supreme court on 22 July 1960.49 There was no longer a legal hindrance to the extradition of all four of them, but the decision to deny them flat out access to the asylum procedure would turn out to be more troublesome for Merchiers.

23On 10 May 1960 this decision had been brought to the public forum as Henri Rolin, an acclaimed jurist and Socialist senator, posed a parliamentary question on the decision of Merchiers to deny the four Algerians access to the asylum procedure. A parliamentary debate followed on 16 June 1960. The point raised by Rolin was whether the alien law of 1952 curtailed the power of the Minister to summarily expel an irregular immigrant when that foreigner applied for asylum. Could any alien by requesting asylum protect him/herself against the absolute power of the executive power to remove him/her immediately from national territory? Rolin emphasized that the law guaranteed that the person requesting asylum would have his case investigated by the Consultative Commission prior to an expulsion decision of the Minister. Merchiers strongly disagreed, arguing that Belgium would be delivered to a mass invasion of Algerians who would continue their violent struggle in Belgium. Belgium would have to open camps as the places available in the prisons would be insufficient for these would-be refugees and Belgian national security would be heavily compromised.50 National security demanded that the executive could make swift decisions to keep unwanted and dangerous immigrants out. The Minister could ask for advice from the Consultative Commission, but the decision was up to him. Granting asylum was a favor and no right to be claimed and, therefore, the advice of the Consultative Commission was not something an immigrant could claim. Merchiers denied that asylum seekers had specific privileges that distinguished them from other immigrants. He emphasized national sovereignty by proclaiming that any immigrant could be expelled by the executive power at will.51 Rolin retorted that the alien law provided enough leeway for Belgian national security to be protected, but that this law also stipulated that every asylum seeker’s request, even if he or she had entered irregular, had to be investigated in a serious manner. Part of this investigation, he stated, was that the Consultative Commission had to be able to formulate its advice.52 Rolin’s interpretation of the alien law providing any asylum seeker a minimal individual protection was later discussed in the Commission of Justice of the Senate, and a large majority of the MPs disapproved of the Minister’s decision to deny the Algerian asylum seekers a fair investigation of their need for protection.53 Probably there were more cases of Algerian asylum seekers whose claim for protection were not investigated. Ameziani Amrane, a French Algerian who had fled France because he was under a police warrant for having shot at policemen in January 1960, had been ordered to leave Belgium on 20 May 1960. When he was arrested on 31 May in Antwerp, he claimed to be a political refugee. Although he was being supported by a Belgian anticolonial lobby group close to the MNA, they did not forward his asylum request to UNHCR. Furthermore, the Belgian authorities did not inform UNHCR of his request, on the contrary Merchiers ordered his expulsion.54

24The issue of whether the four FLN militants, legally advised by Marc de Kock had access to the asylum procedure remained open as the verdict of the Council of State remained pending. Although Merchiers had denied the four Algerian asylum seekers access to the asylum procedure, the Ministry of Justice insisted upon UNHCR in July 1960 after the Supreme Court had authorized the extradition to have a decision on their cases. In view of the delicate matter, UNHCR headquarters advised their staff in Belgium not to directly reply to the Minister of Justice. They had to take the matter up with the Ministry of Foreign Affairs and to suggest, emphasizing clearly that their suggestion did not prejudice in any manner the High Commission’s position, that it may not be necessary for the Ministry of Justice to await the decision of UNHCR, but that in view of the declared opinion of the Ministry of Foreign Affairs on the relevance of the Geneva Convention to these people, the Minister of Justice may consider that the authority of the Consultative Commission for Aliens is established.55

25On 3 September 1960 there was a cabinet reshuffle due to the Congo crisis. The Minister of Justice Merchiers was replaced by his fellow party member Albert Lilar, who remained in office until the Liberal-Catholic government fell on 27 March 1961. During Lilar’s terms of office another four Algerians in Belgian prisons officially requested asylum at UNHCR. They had been arrested on account of illegal border crossing, and there was no French request of extradition. Also, in these cases UNHCR did not intend to make any decision soon. It appeared that the Belgian authorities were in agreement with these delaying tactics as they did not insist. In addition, their lawyer had not urged for a decision on their case.56 On 8 November 1960 Henri Rolin and Pierre Vermeylen, both Socialist senators, introduced a proposal for amending the alien law. The amendment stated unequivocally that irregular immigrated aliens who applied for asylum could not be expelled while their request was being investigated without the advice of the Consultative Commission.57

26By early 1961 the French-Algerian conflict started to be pacified. De Gaulle had negotiated with the FLN and the referendum on 8 January 1961 had given him a mandate to pursue that route. UNHCR became worried that Minister of Justice Lilar did not express publicly that he would not extradite Arbaoui and the three other Algerians. In the very beginning of 1961, five months after the decision of the Supreme Court which enabled their extradition, UNHCR tried to influence the decision of Lilar by informal lobbying at the level of top civil servants of the Ministry of Justice. UNHCR, with the support of Foreign Affairs, wanted to stall the recognition of the Algerian asylum seekers until a political solution could be found to the Algerian problem, but the extradition of the four Algerians had to be prevented. Those top civil servants were not eager to be involved in this delicate affair. The director-general of the administration of public security, Caeymaex, even retorted that these asylum seekers were vulgaires tueurs and he would not intervene for them on behalf of UNHCR. He had no business in it as it was, according to him, a strict political affair. Another top-level civil servant of the aliens’police Laloux, who worked as an adviser for the Minister, retorted that she would not bring this message of what she called “UNHCR chantage” to the Minister. She warned that any day Minister Lilar could decide to extradite them as the Belgian judiciary had not raised any objection. If UNHCR did not intervene officially, the Minister would not take their point of view into account when he finally made a decision.58 This adviser wanted to provoke UNHCR as it is highly likely that Lilar considered, contrary to the judiciary, the crime of which the four Algerians were accused of to be a political crime. He probably waited for UNHCR to decide about the asylum requests before taking any action.59

27The HCR delegate in Brussels proposed to inform Minister Lilar officially that those four Algerians in Belgian prisons for whom a French extradition request was pending had applied at UNHCR for asylum and that any information relevant to the status determination would be welcome. This official acknowledgment would hold up the extradition and UNHCR could still wait to make a decision. The High Commissioner agreed, but first the Ministry of Foreign Affairs had to be informed to make the position of UNHCR clear.60 However, up till then UNHCR had only been seized officially with a request for eligibility determination on behalf of Mohamed Arbaoui, but not of the three other Algerians. Notwithstanding that these three had informed the Minister of Justice that they had requested asylum, their lawyer De Kock had only raised orally the matter of an asylum request with UNHCR. Probably informal contact was made with the lawyer as shortly afterwards these three Algerians, already in prison for eleven months, applied to UNHCR to intervene on their behalf. UNHCR opened the case and made this official by asking the Belgian authorities on 7 March 1961 for further information.61 This diplomatic initiative of UNHCR seems to be the impetus for Minister of Justice Lilar to finally make a clear-cut decision in this delicate domain. During his seven months in office as Minister of Justice there had been a standstill. The definite rupture with the pro-French policy of Merchiers came only at the very end of his tenure as Minister of Justice. On 24 March, 1961 Lilar decided to withdraw the decisions of Merchiers to expel (and extradite) Algerian nationalists.62 Mohamed Arbaoui and the three other high-profile cases were no longer under threat of extradition, but even Ameziani Amrane, for whom the extradition procedure had been finalized by April 1961 and who had remained invisible in the public discussion (and for UNHCR) was no longer in danger to be extradited.63 All five of them remained in prison. At the end of March Lilar ordered the liberation of four other Algerian asylum seekers who had been convicted because of illegal border crossing. They were granted a residence permit pending the decision of UNHCR on their asylum request. Lilar had unblocked the French-Algerian stalemate in Belgium with one of his last decisions while in office. He finally disavowed his party member Merchiers. However, by not extraditing those Algerian nationalists under French warrant he had inherited in September 1960, after the judiciary had cleared the path, he had already changed the policy toward Algerian asylum seekers.64 That no more Algerians were expelled to France because of their nationalist politics was another testimony of this change of policy, but in March 1961 a page was officially turned.

28In 25 April 1961 a new Catholic-Socialist government was formed with the Socialist Pierre Vermeylen as the Minister of Justice. One of his first actions, on 5 May 1961 was to liberate Ouakli Rabah, the spokesmen of the group of three FLN members. Rabah withdrew his asylum application and left for Marocco.65 The international context was fortuitous for a more pro Algerian course. The first round of peace talks between France and the FLN opened at Evian in May 1961. However, it would take almost a year before on 18 March 1962 a ceasefire agreement was signed between France and the provisional Algerian authorities.

29On 29 June 1961 the Council of State passed its verdict confirming De Kock’s (and Rolin’s) interpretation of the alien law that the Minister had to ask the advice of the Consultative Commission prior to deciding about the asylum request. The decision of Merchiers to deny Mohamed Arabouie access to the asylum procedure violated the law and was annulled. The Minister had not asked the advisory commission for its opinion as provided by the law.66 The new Minister of Justice, Pierre Vermeylen, ordered the liberation of Arabouie as well as the two other FLN members of the group of three still in prison. These three, like Ouakli Rabah withdrew their asylum request and left Belgium for a destination of their choice.67 The French protested furiously that they had not been extradited.68 The Algerian nationalist Ameziani Amrane for whom the French had also requested extradition remained in prison in Antwerp. Only in December 1961 was it decided that he could be liberated and he also left the country.69

30By the summer of 1961 the most explosive cases had been neutralized, but more Algerians were applying for asylum. A thirty-three-year-old Algerian left France where he had been living since 1955 as he could no longer stand the violence against him. He arrived in Belgium on 7 July 1961 and applied on his own, in person at the UNHCR office for asylum on 18 July. A twenty-year-old Algerian, also in France since 1955 where he had been arrested and remained under police supervision, arrived on 18 June 1961 in Belgium. In September 1961, with the support of Marc de Kock, he applied for asylum at UNHCR.70 By the end of 1961, a total of 15 Algerian asylum requests were pending at the Belgian branch of UNHCR.

31UNHCR could rule on these cases, but the then High Commissioner Félix Schnyder feared this would lead to a wave of Algerian applications and he wanted to avoid this. In early November 1961 a meeting was called in Geneva by the High Commissioner with representatives of the Belgian Ministry of Foreign Affairs to discuss whether it was possible to grant these asylum seekers a de facto asylum without a formal eligibility determination. This had been a satisfactory solution for Algerian refugees in several European countries, The Belgian Ministry of Foreign Affairs agreed that a humanitarian solution for the Algerian asylum seekers was desirable, but without their formal recognition as refugees. The Ministry of Foreign Affairs agreed on considering them as de facto refugees who would qualify for a residence and work permit, but without granting them refugee status.71

32How to implement this strategy had to be agreed upon locally. A working group was convened in Brussels with high level representatives of the Ministry of Justice and Foreign Affairs and the local representative of UNHCR. Foreign Affairs pointed out that Algerians as French citizens had full social and economic rights in Belgium so there was no “real interest” for them to be recognized as de jure refugees, except for political and ideological reasons. Recognizing them as de jure refugees would place Belgium in a very delicate position toward France as this would be considered a blame moral for France. Therefore, Foreign Affairs proposed that Belgium grant a labor and residence permit to all those who had applied for asylum at UNHCR and for whom there was no “real interest” in being granted a formal refugee status. The Sûreté retorted that Belgium would in this way become exceptionally welcoming toward Algerian refugees and this would act a as magnet for Algerian nationalists. An Algerian invasion would follow and as the Algerian nationalist movement was strongly divided this could unleash a violent struggle on Belgian territory. The Sûreté was fighting a rearguard battle as the political situation had changed radically on the domestic as well as on the international scene. The Minister of Justice Vermeylen agreed to the proposal of Foreign Affairs and UNHCR. However, Vermeylen thought he could still make a final (positive) decision if the UNHCR decided negatively on an asylum request of an Algerian nationalist. Vermeylen would of course abide by the law and ask for the advice of the Consultative Commission before deciding himself. That the Minister of Justice believed he could issue an appeal decision, was strongly opposed by UNHCR; they told him that was an idea that had been rejected a long time ago.72

33UNHCR was eager to find a solution to the pending asylum requests, but did not want to be tied too closely to the Belgian temporary solution for the Algerian crises, although this solution had been suggested by UNHCR. Therefore, UNHCR agreed to recommend Algerian asylum seekers for the so-called Belgian de facto refugee status within the delegated authority given by the Belgian government to determine refugee status. UNHCR did not want to make this procedure public as an agreement between Belgium and UNHCR. UNHCR also insisted on retaining its autonomy in ultimately recognizing refugees.73 In February 1962 UNHCR recommended all 15 Algerians who had applied for asylum at UNHCR as de facto refugees to the Belgian authorities.74 The usual case by case investigation was deemed undesirable as this was only a recommendation for a Belgian de facto refugee status as a temporary solution for Algerian asylum seekers. A more selective recommendation would have undermined the temporary solution to the pending asylum requests. In order not to formally discriminate against the Algerians, all asylum requests at the Belgian branch of UNHCR had to be screened on the so-called real interest, at least temporarily, in order to deny any asylum claim for mere political and ideological reasons.

34Slightly later, on 18 March 1962, the Evian agreements were signed between the French government and the provisional Algerian authorities (GPRA). On 5 July 1962 Algeria became independent. That the Algerian refugees would derive a political advantage from their recognition as refugees disappeared overnight. It seems that the screening of asylum seekers in Belgium on the so-called real interest of their asylum request was immediately suspended.

A clear-cut asylum procedure paving the way for a flexible handling of asylum requests

35The experience with the Algerian refugees caused an awareness among the politicians, especially on the left, that asylum seekers had to be better protected by law. The Socialist-Catholic government with Pierre Vermeylen as Minister of Justice amended the alien law in 1964 by clearly stipulating that those aliens who entered Belgium in an irregular manner could apply upon arrival for asylum and that during the investigation of their case they would be tolerated. Rolin had given the legislative amendment of 8 November 1960 a facelift. UNHCR had insisted upon Rolin that the legislator attribute UNHCR a central role in the asylum procedure and that it should be acknowledged in any legislative proposal for a fair asylum procedure.75 The Ministry of Justice also added to the proposal by insisting on a prior selection of the unworthy asylum seekers. Irregular immigrants who obviously claimed to be refugees without any reason had to be excluded from this provision.

36The eligibility phase, during which the Ministry of Justice since 1952 had refused access to the asylum procedure to those asylum seekers for whom Belgium was not the first country of asylum was formally extended to those whose claim was manifestly unfounded. Fraudulent claims or claims not related in any manner to the criteria stipulated in the Convention of Geneva had to be refused this provisional protection. This was a regularization of a pre-existing practice of border guards who, after consulting the aliens’ police in Brussels, pushed back those whose demand for asylum was considered unjustified. As UNHCR had complained that the aliens’ police usurped its authority, the Belgian authorities agreed that manifestly unfounded claims could only be raised with prior consent of UNHCR.76

37This victory for UNHCR was, however, counterbalanced by Minister of Justice Vermeylen who insisted on having authority for the recognition of asylum seekers that were beyond the purview of the 1951 Convention. Foreign Affairs advocated one asylum procedure by which UNHCR would decide on all requests for asylum, as this would deflect any diplomatic critic against a recognition decision. This had been the practice prior to 1964 when the cutoff date had not been strictly enforced. UNHCR had been able to recognize refugees from Hungary, Cuba, and even Egypt without much ado. The question whether the events which had caused their persecution were to be situated before 1951 had not been raised.77 The Algerian case demonstrated that the cutoff date could be mobilized to deny UNHCR the power to recognize refugees. Although the Ministry of Justice had not wanted this competence during the Algerian crises, in 1964 they strongly insisted on having full authority over all asylum requests not related to events that had taken place before 1951. They wanted to be armed against unwanted immigrants, even if they were refugees. They succeeded in gaining this authority, which they said was absolutely necessary in order to safeguard public order.78

38The Ministry of Justice did not exclude UNHCR completely as its expertise in recognition of refugees could be of use. A commission was installed for the requests of asylum seekers whose application was not related to events prior to 1 January 1951. Representatives of the Ministry of Justice and of Foreign Affairs discussed these asylum requests with UNHCR, but the latter had only a non-binding advisory role. It quickly became clear that what was perceived as national interests became paramount in this Belgian recognition policy. In 1964 when some young Tutsis who were students in Belgium had request asylum, due to the violent ethnic conflicts in Ruanda, the Belgian authorities denied them protection as this would be to the detriment of Belgium’s political interests. These Tutsis could endanger the diplomatic relations with Kigali but Belgium would be defenseless if they were protected as refugees. The Belgian authorities thought that refugees had too strong a protection.79

39From 13 May 1969 onwards, when the 1967 Protocol of New York came into force, UNHCR succeeded in having precedence in all asylum cases.80 The Ministry of Justice insisted that the Belgian authorities should not lose all grip over refugee status determination.81 Thus, the Commission in which the representatives of the Ministry of Foreign Affairs, of Justice, and UNHCR met continued to be convened. Although the power position was reversed as recognition policy ended up being in the hands of UNHCR, the Ministry of Justice (and Foreign Affairs) wanted to preserve their institutionalized input even beyond the eligibility phase. All asylum applications who were problematic and in particular politically sensitive cases, according to the Belgian authorities, were to be discussed in this informal commission for refugee problems. This advisory commission for refugee problems was meant to be a vehicle for protecting Belgian interests in the refugee recognition procedure. Some asylum requests were not decided for years because of a disagreement between UNHCR and the Belgian authorities or because the Belgian authorities insisted on having more time to investigate whether the asylum seeker was worthy of protection.82 This interference in the recognition decisions of UNHCR was probably largely the result of the close collaboration between the then Minister of Justice Alfons Vranckx (Socialist party) and Ludo Caeymaex, the director-general of the administration of public security. Vranckx held this post in two governments for a total of nearly five years (06/1968-01/1973) and he was the instigator of a serious conflict between the Belgian authorities and UNHCR. In 1971 UNHCR installed a new UNHCR career diplomat Stanley Wright, a British national, as its representative in Belgium. Vranckx was radically opposed to this decision as he believed the determination of refugee status was a public function that, following the constitution, could only be carried out by a Belgian national. The Minister of Foreign Affairs Harmel had few qualms about it and gave his agreement to UNHCR. Vranckx was not amused and insisted that the authority of UNHCR to recognize refugees in Belgium should be withdrawn. The Ministry of Foreign Affairs had to assume the refugee status determination itself.83 Top level discussions started on how to re-organize the asylum procedure. It was envisaged that the primary decision should be made by the Ministry of Foreign Affairs after reference to a consultative committee and that an appeal procedure should be provided for. UNHCR expressed interest in being associated with the procedure at one of these levels. Most importantly, UNHCR eased the tension by agreeing to prolong the mandate of the existing representative, Jacques Terlin, a Belgian national.84 The then UNHCR High Commissioner, Sadruddin Aga Khan, even came on an official visit to Belgium to honor Belgian commitment to UNHCR’s resettlement program in order to improve diplomatic relations.85

40When in January 1973 a new government was installed the new Minister of Justice Herman Vanderpoorten (Liberal party) reaffirmed Belgian’s thrust in UNHCR as the agency in charge of asylum determination in Belgium. That UNHCR would send Stanley Wright as its representative in Belgium was respected as proper to a global agency.86 Wright took up his post on 1 April 1974 and at first had to bear the brunt of the anger of Caeymaex, who had failed to oust UNHCR from the recognition procedure. Wright, however, had the support of the Minster of Foreign Affairs as well as the Minister of Justice. Foreign Affairs emphasized time and again that the advantage of fully subcontracting the recognition of refugees to a supranational organization was that the Belgian diplomatic interests would not be compromised by this recognition policy. The climate between UNHCR and the Belgian authorities improved considerably.87 UNHCR considered the informal commission for refugee problems a nuisance undermining its competence. Stanley Wright succeeded in reaffirming the authority of UNHCR. The Belgian authorities still articulated what they called their national interests in the informal commission for refugee problems and demanded that UNHCR take these interests into account. In 1975 HCR decided that they still would wait to make a decision if the Belgian authorities wanted to investigate a case, but that all elements had to be at their disposal within one year in order for them to make a decision.88 Only a few cases were still discussed in the advisory commission for refugee problems, mainly asylum applications from political activists from Belgian’s former colonies. The Belgian authorities were under strong pressure from the president of Zaire, Mobutu, who wanted to silence his adversaries in Belgium, but it does not seem they could stop UNHCR from recognizing them as refugees.89

41As graph 1 indicates the annual number of asylum seekers during the 1960s oscillated around 500. By the end of the 1970s the number of asylum seekers had doubled. While asylum seekers still came from Eastern Europe, in the first half of the 1970s Greece, Spain, and Portugal provided the bulk of applicants. In particular, young Portuguese men unwilling to be drafted into the army to fight the colonial wars applied for asylum. In the second half of the 1970s the composition changed as democratization made progress in the European Mediterranean region and fewer people from that region needed protection. However, the total number of registered asylum seekers increased as more of them originated from the global South. The rise of refugees from beyond Europe was first mainly due to a proactive refugee policy, as Belgium engaged itself in the UNHCR resettlement programs for refugees from the Uganda of Idi Amin (1972) and the Chili of Pinochet (1973)90 and later also from South East Asia (1975-1981)91 and Latin America (1976-1979). Still in the second half of the 1970s mainly spontaneous arrivals from the global South added to the number of asylum applications.92

42The reception of the asylum seekers since the 1950s had been largely organized by NGO’s. The resettlement programs included state subsidies for their initial reception in Belgium, until the newcomers had been installed and had found a job. Even those who arrived spontaneously were taken care of by the NGO’s with the financial support of the authorities. Asylum seekers residing in a municipality qualified for local welfare; this expense for the local authorities was reimbursed by the central authorities.93 Also in the 1970s the legal status of foreigners residing in Belgium, including refugees was slowly being improved. New human rights’ norms were taken hold of by policy makers by which rights in respect of the right of defense-rights which had been reserved for nationals-became extended to foreigners too. This normative evolution found its culmination in the alien law of 1980.94

43This normative transformation caused great embarrassment to UNHCR as the asylum seekers in Belgium did not have the right to appeal the UNHCR decisions denying them refugee status. UNHCR as the sole agency in charge of recognition policy in Belgium did not offer any of the guarantees ensured by Belgian law with respect to the right of defense, of motivation and appeal. The decisions of the UNHCR Representative as an international official were outside the authority of the Belgian Council of State and thus there was no remedy against negative decisions of UNHCR. The only recourse was dependent on the willingness of the Representative to reopen the case when new elements were brought to his attention or when the Representative determined that an error or misunderstanding had occurred. Lawyers criticized this lack of formal guarantees in strong terms. The Belgian authorities looked for a way in which the asylum procedure could provide an appeal procedure.95 As a result, in 1982 UNHCR asked the Belgian authorities to be relieved from refugee status determination. The danger that a decision taken by the UNHCR representative in Belgium would be brought to a Belgian court and be subjected to judicial review in spite of UNHCR’s immunity from jurisdiction had to be prevented.96

44During the 1980s the postindustrial transition and the rising unemployment in its wake made immigration policy more restrictive as labor migrants were no longer needed. The so-called real interest of an asylum applicant in finding protection became much more important as all other avenues of immigration were closed off. As graph 1 indicates the number of asylum seekers doubled in comparison with the end of the 1970s. As Belgium refused to further engage itself in the resettlement operations of UNHCR, all of the asylum applicants were spontaneous asylum seekers.97 The Ministry of Justice applied the exclusionary criteria during the eligibility phase in a much stricter manner than before.98 Due to the higher numbers of applicants and the insufficient staff UNHCR accumulated a backlog in the investigation of the merits of asylum cases. In 1982, local authorities, in particular in Brussels, started to boycott the reception of asylum seekers by refusing to register them in their commune. They argued that the belated reimbursement by the central authorities was a drain on their local finances. The whole reception structure organized by NGOs collapsed. The NGOs succeeded in preserving some reception facilities by having UNHCR and the regional authorities step in financially; only in 1985 did the federal authorities cosponsor reception facilities directly.99 Asylum policy became a politically sensitive issue and the local authorities’ disengagement was partly due to electoral calculations. At the national level a new alien law was enacted in 1984 that aimed mainly at strengthening immigration control. It did not address refugee status determination, notwithstanding that UNHCR insisted several times that a proper Belgian procedure should be installed.100 It would take another four years before the Belgian authorities agreed on how they would organize refugee status determination themselves.101 In 1988 the administrative asylum agency Commissaris-Generaal voor Vluchtelingen en Staatlozen/commissariat général aux réfugiés et aux apatrides took over refugee status determination from UNHCR. The CGVS/CGRA integrated in the Ministry of Justice had to investigate the merits of asylum applications and its negative decisions had to be accounted for. Those decisions could be appealed at another newly erected institution, Vaste Beroepscommissie/Commission permanente de recours des réfugiés. The policy makers hoped with this new institution to be able to speed up the decision making, but that would turn out to be more difficult than expected.

Conclusion

45To conclude, the international refugee regime is, as a rule, to the detriment of national sovereignty as national authorities restrain their executive power by protecting those immigrants who have been forced to flee. They do so in order to improve the efficiency and effectiveness of their immigration policy. An international refugee regime also improves the relation between states, in particular as there are no “refugees in orbit”. These are the unwanted guests who have no home to return to and who are ping-ponged over the border. These “refugees in orbit” are a challenge for states, and only if states submit to an internationally agreed upon mode of behavior are these refugees able to settle somewhere. For the international refugee regime after the Second World War the surrender of national sovereignty was limited to the first country of asylum, which pardoned the irregular immigration of asylum seekers and was bound to non-refoulement, thus not returning refugees to the country of persecution. Refugee status determination was left to the discretion of the national authorities.

46Belgium forfeited this national authority by outsourcing the refugee status determination to UNHCR between 1952 and 1988. In 1952 the Belgian state delegated the authority of refugee status determination to UNHCR. Belgian policy makers perceived this delegation as the logical outcome of the full acceptance of the new international refugee regime. The Netherlands did so as well, but in a less formal manner. No other European country party to this new international refugee regime followed suite. They considered refugee status determination to be a national prerogative to which UNHCR at most could be involved in an advisory capacity. The Belgian thrust in UNHCR went parallel with a shift in domestic politics. Belgium adhered to the 1951 Convention of Geneva and this was the occasion for the Ministry of Foreign Affairs to claim refugee policy under its domain. Refugee policy became an integral part of Belgian foreign policy, and delegating the authority to UNHCR meant that Belgian diplomatic interests were not compromised by the recognition policy. For the Ministry of Justice and in particular the aliens’ police, which had traditionally been in charge of immigration policy, including refugee policy thus implied they had lost a grip over one flow of immigrants, the asylum seekers. The Ministry of Justice did not accept this wholeheartedly and throughout the 35 years UNHCR had this important role in Belgian asylum policy they could always retain some influence on refugee policy. Quantitatively the spontaneous requests for asylum were of little importance, mostly less important than the controlled inflow of refugees through resettlement and labor recruitment programs. Having negligible control over this spontaneous inflow was therefore of little importance for migration control and merely a nuisance for the aliens’ police.

47Still, the Algerian asylum requests between 1959 and 1961 show the potential explosive nature of asylum and the importance of the institution that has to determine refugee status. To decide whether these Algerians were refugees was definitely a hot potato and the traditional positions reversed. Foreign Affairs advocated that the Minister of Justice should take the lead, while the Minister of Justice wanted UNHCR to decide. UNHCR although already having this authority in Belgian asylum policy for nearly a decade was largely absent in the political discussion between the administration, Parliament, the judiciary, and the Council of State. During most of the time, the Consultative Commission advising the Ministry of Justice rather than the UNHCR was the focus of the national debate on protection for the Algerian refugees. It seems that even the activist lawyer Marc de Kock for a long time did not take the protection that UNHCR potentially offered serious in his legal battle for asylum for the Algerian refugees. Only from March 1961 onward did UNHCR take up fully the role it had been assigned in Belgian refugee policy. In this delicate matter they held these asylum requests explicitly on hold for diplomatic reasons. Algerian asylum seekers were not granted de jure asylum, as their stay was merely tolerated. That a state grants asylum provides not only protection to a refugee but as a side effect can have a strong political overtone, as recognizing a refugee can also be judging another state as a persecutor. The Belgian authorities turned this upside down as they blamed the Algerian refugees for wanting to book ideological benefits and therefore denied them de jure asylum. However, implicitly they protected them by no longer sending them back to France, let alone extraditing them. This diplomatic (or ideological) dimension of asylum was paramount in the discussions between the Belgian authorities and UNHCR in the period we covered.

48Following the public debate on the Algerians, asylum seekers became better protected by law but the Ministry of Justice reasserted its authority in refugee status determination to the detriment of UNHCR. UNHCR could not yet take center stage in the Belgian asylum procedure. The 1967 Protocol of New York expanded the reach of the Convention of Geneva and UNHCR could claim quasi full control over refugee status determination in Belgium. UNHCR still had to confront what was presented by the Belgian authorities as national interests in the diplomatic domain. The second half of the 1970s were the heydays of refugee protection in Belgium as advocated by UNHCR: quasi no intervention in its refugee status determination decisions, but also full support for its resettlement programs and even a strengthening of the legal rights of all aliens. Legal rights, however, that UNHCR as an international organization denied to the asylum seekers in Belgium as due process was not part of their refugee status determination process. Therefore, by the early 1980s UNHCR wanted to be relieved from the Belgian refugee status determination process.

49The economic downturn with unemployment and a very selective immigration policy in its wake meant that in refugee policy making the so called “real interest” of refugees to be able to settle elsewhere safely became more important than the diplomatic side effect of the condemnation of a persecutor. That requesting asylum provided the only legal access to Belgium for uninvited immigrants caused the stakes to become politically more important. The Belgian state disengaged as well from the UNHCR resettlement programs along with the national reception of asylum seekers, notwithstanding a growing number of spontaneously arriving asylum seekers. Still, the Belgian state was not eager to suddenly assume full control over refugee status determination. That asylum policy was of importance for a state, including proper institutions for refugee status determination, respect of due process would take another six years to materialize. Whether national interests would be easier to be integrated in an asylum policy fully controlled by national institutions remained to be seen. That what was perceived as national interests in this domain had already expanded considerably in the 1980s and would make it more difficult to align the protection of refugees with immigration policy.