Proposition 54K2491

Projet de loi modifiant l'article 39/73-1 de la loi du 15 décembre 1980 sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers.

General information ¶

Submitted by

MR Swedish coalition

Submission date

June 1, 2017

Official page

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Status

Adopted

Requirement

Simple

Subjects

lawyer action brought before an administrative court misuse of a right rights of aliens

Voting ¶

Voted to adopt

CD&V Open Vld N-VA LDD MR VB

Voted to reject

Groen Vooruit Ecolo LE PS | SP DéFI PVDA | PTB

Abstained from voting

∉ PP

Party dissidents ¶

• Olivier Maingain (MR) voted to reject.
• Stéphanie Thoron (MR) abstained from voting.

Contact form ¶

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Discussion ¶

July 20, 2017 | Plenary session (Chamber of representatives)

Full source

The rapporteurs are Mrs Lanjri and Mrs Gabriëls.

Mr. Secretary of State, first of all, I would like to thank you for continuing your path and making the necessary changes to prevent procedural abuse. So far, the government has adjusted the legal arsenal several times.

What is being voted today is a change in the possibility that the court in foreign matters has to act against abuse of the procedure. This possibility has existed since 2010, but has only been applied twenty times in practice. When asked why the possibility was invoked only twenty times, it said that the procedure was not simple enough and slowed and complicated the entire system.

With this amendment, we will simplify the procedure for claiming law abuse and make it more efficient. This will also encourage its use by counselors. From now on, it will be possible, in one and the same hearing – which is very important, because it brings time gain – to draft both a judgment in appeal and a judgment in which the applicant is convicted for a manifestly unlawful appeal, thus both substantially and procedurally. This is clearly a simplification, which is clearly more efficient.

I would like to emphasize here, as in the committee after criticism from the opposition, that these are apparently unlawful professions. There is always a review by the judge. The procedure will not be called lightly.

Years ago, we wrote the book Land Without Borders. In this we have already identified the abuses and we have defiled the entire migration industry, of which this is a very good example. Such practices cost a handful of money and do not prove a service to anyone, in the first place the foreigner in question. It costs the foreigner and society a handful of money, because very often it is pro-Deoprocedures.

The legislative amendment presented today also introduces the possibility of sanctioning the lawyers, who are responsible for initiating proceedings, if it is effectively proven that they abuse the procedure to gain time to extend their stay in the country. By placing the responsibility on the lawyers and empowering them to handle certain procedures economically and clearly weighing whether it is in the interest of the society and in general in the interest of the client himself to initiate the procedure, the lawyer’s profession is offered the opportunity to act self-regulating. Currently, the only sanction that can be imposed is a fine, which is at the expense of the foreigner himself. It is obvious that this fine is often not collected because the foreigner is insolvent and cannot pay the fine, or because he is no longer found, because he has already left or deported on his own. The penalty is often an empty box. With the introduction of the possibility to impose a sanction on lawyers who abuse procedures, the actual responsible for the abuse of procedures can finally also be sanctioned. A disciplinary procedure may even be initiated against the conscious lawyer.

Colleagues, in other jurisdictions – civil law, criminal law – there are thresholds related to the process of justice. Targary and reckless proceedings are sanctioned in all jurisdictions. In many areas of law, there is even mandatory mediation before you can go to court. This is the case in juvenile law; there are thresholds for the peace court; there are thresholds for the court of first instance. Everywhere, the lawyer is held accountable and access to the court is made difficult. Procedures must be thoughtful, which speaks for itself. Justice costs a lot of money. We are happy in a rule of law. This may cost money, but it must be used very economically. All jurisdictions provide for the handling of impaired and reckless matters. Everyone stands in favour of tackling procedural abuse with a view to efficient justice. However, when it comes to alien rights, it is often heard from the left corner and from the opposition that we want to act stigmatizing. This is actually very difficult to understand. This is not consistent with the line, which is ⁇ ined by all branches of justice.

In conclusion, the N-VA group strongly upholds the principle that everyone, including a foreigner, has the right to a proper defense and must be able to enforce their rights in our society. This is one of the fundamental principles of our rule of law. We are, of course, absolutely in favor of this, but that does not mean that we should do nothing against procedural abuse and that nothing should be done in the fight against apparently unlawful occupations. With this bill, Mr. Secretary of State, you do that, you address that problem, and you fight that struggle.

It is obvious that you have the support of our group in the vote on the bill.

Mr. Speaker, dear colleagues, after two readings for a project that has only three articles, we are here in plenary session to examine this bill on the abusive appeal. Some would say that this is an opportunity for a thorough reading. To those, I reiterate that a bill to settle a situation involving 19 cases per year is to use its time in an equally random way. And it is probably more. This is to continue an action that, for us, has been negative since the beginning of this legislature. The Minister has repeatedly amended the 1980 law to restrict the rights of foreigners and asylum seekers.

It is the same every time! The immigrant is presented as a criminal or the refugee as a liar. I will not return to the debates conducted through the current issues regarding your statements about those who are asking to be rescued in the Mediterranean. Today, the minister is attacking lawyers who advocate for the rights of foreigners. You present them as lawyers abusing appeal procedures before the Council of Foreign Disputes.

It must be said that Mr. Francken is cuddled! He claims that lawyers abuse appeal procedures while he is unable to demonstrate them. It is still quite serious! You are forced to vote on an amendment to the law when nothing justifies it. There is no evidence of abuse or an increase in complaints. And when the bars of lawyers - French and Dutch-speaking - put you to the test by asking you to produce writings, complaints about these abuses in matters of appeal procedures before the Council of the Foreign Dispute, they get no answer. Nothing is! No complaint was submitted by Mr. Francken or by the services! What else to say? Everything is said! We are facing a proposal to amend the law which is based on nothing.

Another element draws our attention: you could be taxed, yourself, for abusing procedures.

This is evident when you see how you are doing, the amount of procedural manoeuvres you have used to avoid having to issue humanitarian visas. This is also the case when one thinks that it has had to go, in the end, to the last resort, namely the European Court of Justice, in order to gain cause. It’s hard to see the reality of the numbers. In terms of complaints, there are a total of 19 cases.

The project in question shows a rather negative image of lawyers. They feel like they don’t know their job. We refer to what we have been told by the bars - Flemish, Francophone and Germanophone - regarding the number of training followed by lawyers who exercise in the field of foreign law. Between these training requirements, at least one-third of compulsory hours, and the ridiculous number of penalties, we see the reality.

From this point of view, it should also be pointed out that the draft, in its original version, provided that the outcome of the hearing was already played in advance, since the question of the abuse of the appeal was to be pledged at the same session as the substance of the file. We are still far from an ideal situation, but at least the amended version of the text goes less far in this area. One can rejoice, but one is forced to agree that if the opposition had not fought to obtain hearings, one would not even have raised this point. This says a lot about the working method.

Finally, I will stop on one last point. This is also a point of disagreement with you. The administration, however, never introduces an abusive procedure, since only the author of an appeal can be sanctioned. The cassation of the decision would be the only sanction for an act of the administration that would be manifestly abusive. It is therefore seen that the draft also envisages breaking what was agreed to be called the equality of arms before the Council of the Foreign Dispute.

For all these reasons, my group will not support this text.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. We will support this.

It serves to prevent apparently unlawful professions. For all clarity, this is not a new thing. There is already a procedure for counteracting apparently unlawful appeals, but that procedure is complicated, time-consuming and requires each separate session With the proposed amendment, the judges of the Council for Foreign Disputes can also immediately decide during the hearing on the substance of the appeal whether or not a appeal is apparently unlawful. That’s a good thing because the stakeholders get clearer in this way. In addition, this will relieve the working pressure at the RvV, allowing more time to be spent on other procedures so that they can also be completed faster. Our group has always been in favour of fast but also high-quality procedures that provide legal certainty to stakeholders.

For all clarity, this bill does not mean that people will no longer be allowed to register a profession. Appeal is one of the existing remedies and it will continue to be ⁇ ined. This is about manifest abuses that need to be addressed. Again, appeal is and remains the right of everyone.

After hearing the Order of Lawyers, both the Flemish and the French-speaking bailes, we have made an additional clarification in the bill. With an amendment, we clarified that, if necessary and in order to effectively safeguard the rights of defence, the judge may decide to grant a deferral and to hold a new hearing so that the lawyer concerned can properly prepare. If no new session is needed, everything can be done more efficiently and faster.

We will approve this bill.

Mr. Speaker, Mr. Secretary of State, colleagues, for all clarity, sp.a is not against taking action against procedural abuse.

Mr. Secretary of State, I could not appreciate that you immediately tweeted that sp.a, along with a number of other parties, is for procedural abuse. I think we have taken the right stance in this area. We have a problem with this law because we think that it is not the right tool to ⁇ the goal that you, like us, set forth, namely to counter procedural abuse.

I would like to thank you for de facto registering our amendment, aiming at allowing a second hearing, so that the lawyer concerned can defend himself in the Council for Foreign Disputes with arguments before being accused of procedure abuse. Mrs Lanjri also referred to this.

As has been said several times, in six years there have been about twenty dossiers. You can, of course, say that there are so few files because it’s so complicated that could be. During the hearing, we understood that the Bar Association is prepared to engage in the dialogue in order to remedy it. In addition, the Minister of Justice is working on a number of legislative initiatives to conduct a structural dialogue on adjustment and adaptation.

In the hearings we heard from the lawyers that there is a very strict quality control and then still mainly in foreign law, because these are written procedures. The new point system also means that we see a change in behavior among lawyers. As I also said in the committee, as a former OCMW chairman I have some experience with procedural abuse around regularizations and living wages. Well, if one initiates a proper dialogue with the lawyers, one can, if necessary, bring about behavioral change.

Is this law necessary? Will it deliver results in an efficient way? Or is it mainly windowdressing and knocking yourself on the chest? It can be done, but it does not always produce results.

We also have questions about the penalty system. Who gets the penalty? The foreigner . If he has applied or requested procedural abuse, then in your efficient system he will likely have been expelled all the country. Then one can ask whether the penalty is inherent, and therefore whether the system is efficient. After all, it would be best for the government to invest more money in order to collect the fine. So the ham question is whether the soup is worth the cabbage. Therefore, we advocate to work with lawyers to find more efficient systems.

That is why we will vote against.

Mr. Speaker, colleagues, I would like to take this opportunity to respond immediately to what Ms. Smeyers said during her speech.

She showed up, or rather, she literally said that leftist parties are not against unlawful appeal procedures. I think this is punishment! For those who followed the debate in the committee, this does not correspond at all to the reality. I hadn’t even seen it, Mrs. De Coninck, but apparently Secretary of State Francken tweeted that leftist parties are for such unlawful procedures, for outgoing appeal, and so on.

For the sake of the colleagues and for the sake of the Parliament, these kinds of provocative schemes that do not respond to reality may benefit you electorally, but they are fake news.

Mrs Smeyers, we were close to an agreement, even when we voted “yes” to the draft law by Secretary of State Francken. We were very close there, only two things had to happen.

First, we also wanted to pay attention to the negative role that the Foreign Affairs Service sometimes plays in this regard. Indeed, the DVZ is sometimes the cause of pending procedures, because if he feels coming that he will be placed in the wrong by the RvV, he withdraws his decision and submits a new one with a small change, which obliges the client to appeal again. We have asked in the committee to pay attention to this too, instead of making such a one-sided story of it. We were not followed there.

There is a second reason why we were so close to a yes vote on the bill. We wanted to adapt abuse and evolve into a simplified procedure by going to one session, for example. After all, we had an eye for what Theo Francken said and could also demonstrate, namely that sometimes one does not want to organize a second session because the soup was not worth the cabbage, because it is a too expensive procedure, and so on. Our group was open to going to one hearing, but we would like the lawyer, at the time he is invited to that hearing, to know perfectly what lies above his mind, in particular a complaint for unlawful appeal, ongoing procedures, and so on. We also consider that one should disclose the motivation that would be invoked so that the lawyer, when he goes to that single session, at least knows how to prepare and defend himself against that argumentation.

So stop those schemes, Mrs. Smeyers, because that does not correspond to reality.

The [...]

Mrs. Smeyers, you said what you said and I am tired of you distorting the facts. We were close to an agreement. I will not say that there was consensus on the bill, but we were definitely willing to support it. We also wanted to address the abuse of procedures, but these two elements remained.

By the way, the amendment initiated by colleague Lanjri went in the right direction. Thanks to that amendment, the lawyer must now be informed of the fact that such a complaint is being made, but we asked that the lawyer should also be informed of the argument used. Furthermore, it still depends on the RvV itself whether or not the case will be suspended during the hearing to give some more time to the defence. That means that the lawyer himself cannot force that. That decision still depends on the RVV. However, the debate evolved well, there were hearings and a good majority amendment. We were almost there, but just not. These are the facts.

I would like to put the points on these points before the Parliament and before the report.

Mr. Speaker, the CDH group voted against in the committee. Our position will not change. This position is confirmed by the letter of 20 June 2017 by Mr Buyle, the president of avocats.be. He is also the former president of the Order of French-speaking lawyers.

This text poses problems and contains potential violations of the European Convention on Human Rights. The speakers, at the hearing on 13 June 2017 in the commission, admitted it unanimously. According to Mr Buyle: "This proposal remains in breach of Article 6 of the European Convention on Human Rights. A court is obviously no longer independent and impartial if, before taking the case deliberately, and even before deliberating, the court shows, by appealing to the lawyer, that it is preparing to consider that the claim will be declared unfounded.

For us, this text is indeed a step backwards from what existed. I wonder what the real purpose of this project is. It is necessary to better punish abusive appeals. They are not legion, it has already been said. The councils of lawyers told us of twenty abusive appeals on 200,000 cases. The number of cases concerned is too small. We therefore continue to vote against.

Mr. Speaker, dear colleagues, I have already had the opportunity to defend, during the hearings and the discussion on the draft in committee, the reasons why we oppose this bill of the Secretary of State. I will briefly recall them.

The Secretary of State does not use the law to resolve a problem (the alleged abuse of foreign law) because this problem is nonexistent. The cases are exceptional, as the representatives of the Order of the Bars auditioned have been able to confirm. He uses it to make believers believe that there is a problem.

This new amendment to the Foreigners Act is again part of a global policy of stigmatisation. As the Minister of Finance stands next to the Secretary of State, I recall that it is a shame that the government does not demonstrate such energy and such legislative will when it comes to addressing real abuses, such as the large tax fraud, the culture of greed or the conflicts of interests sprinkled in the various scandals that emulate recent political life.

During the hearings, the bar orders emphasized in particular the lack of concertation in the preparation of this bill. We are accustomed to this government. The starting point of this bill is the assertion that there are not enough sanctioned abuses. There have been twenty cases since 2011, so in six years, of approximately 100,000 decisions of the Council of the Foreign Dispute (CCE), if we count 18,000 decisions per year. It is infinitesimal.

So, there are two possibilities in front of this small number of cases. That is, the number of cases is much larger but they are unpunished because the procedure is too complicated. This is the basis of this bill. It is on this thesis that this bill is based. That is, second hypothesis, the number of sanctions is extremely low because the number of abuses is also extremely low. This is what the representatives of the French and Dutch-speaking bars orders have told us. I notice at the passage that the French- and Dutch-speaking bars are remarkably united in defending one and the same democracy.

I quote Jean-Marc Picard of the site avocats.be: "The fact that the judgments condemning an abusive appeal are few is a fact that cannot be contested. The deduction that must be drawn from this small number of arrests is that there are, in reality, very few abusive appeals."

Unlike the Secretary of State, the representatives we audited, they, have facts that support their thesis because a large number of files are examined. Since most cases are introduced as part of legal aid, they have the opportunity to check what is in the files.

The project aims to open the possibility that everything happens during the same hearing (examination of the substance and possible abuse of the appeal). Faced with criticism from both the field actors and the State Council, the majority has introduced an amendment that provides for the possibility of a second hearing but this provides that the ECC may, if necessary, suspend or postpone the hearing. The CCE can therefore unilaterally decide that this is not the case and the lawyer will no longer have any possibility at his disposal. This seems to me personally hardly compatible with the contradictory principle that must enable the applicant party and its lawyer, and possibly the lawyer’s lawyer, to defend themselves usefully within a minimum period of time, to organize the defence in relation to specific elements that would be raised at the hearing. There is no respect for the constitutional right to a fair trial. This is the opinion not only of the representatives of the Bar Order but also of the State Council.

Finally, if there is a problem with abuse procedure, it is rather from the Office of Foreigners that it comes. I think in particular of the practice of the "carrousel" which concerns applications for medical regularization on the basis of Article 9ter, when the Office of Foreigners repeatedly withdraws decisions in the framework of ongoing proceedings, without seriously reviewing the file. This constitutes a considerable waste of time for the ECC, which, in terms of the efficiency so promoted by this government, is very counterproductive.

I consider that this bill is useless, stigmatizing, anti-democratic and quite problematic, not to say more. Taking back the arguments put forward by the government, I played the game and introduced in the committee an amendment requiring at least that abuses of the administration, when they exist – which is the case according to the field actors – are also punished. This would show that efficiency is not just a pretext. This amendment was rejected in bloc by the majority, demonstrating that it was indeed a pretext and that the real purpose was elsewhere, especially in stigma.

We will oppose this bill. I observe that, unfortunately, the other majority parties follow the devises of the Secretary of State. We had the opportunity to discuss another of these drifts during topical issues. Here is a new example. And the majority blocks after him. This does not increase you, dear colleagues.

Mr. Speaker, like the colleagues who spoke, I am of the opinion that this bill has caused a vivid controversy because, once again, the government makes the choice not of the consultation – whatever the secretary of state says – with the bars, but that of the confrontation.

When presenting the draft to the committee, Mr. Francken asserted to us that the bill had been drafted in consultation with the bars. But the representatives of the bars learned that the Secretary of State had ⁇ met with the representatives of the Flemish bars in December 2016, not to associate them with the drafting of this bill, but to question the general issue of abuse of procedure before the Council of the Foreign Contest. They told us that a consensus had ⁇ emerged, but only on the principle of communicating abusive appeals to the steamer.

And nothing about what is proposed in the draft, namely a real mechanism that denies the right to defence and representation by a lawyer of the applicant.

As regards the project as such, it was therefore communicated to the bars only once approved in the Council of Ministers, which means that they have absolutely not been associated with the drafting of this text. There was no prior consensus on the single hearing, on the fines or on the elements allowing to determine their amount.

It was only afterwards that two meetings were held with representatives of the bars, but their questions and criticisms remained unanswered by government representatives. Therefore, it was necessary to wait for the hearing of representatives of the bars in a parliamentary committee on June 13, last year, in order for a sketch of the evolution of the text to be considered but totally insufficient.

Indeed, in its first part, the draft provided for the principle of a single hearing to assess and the grounds for the appeal as such and the possible abusive nature of the appeal. The principle of a single hearing has been widely criticized, since it is evident that one cannot, during the same hearing, without giving the appearance of ignoring the principle of the impartiality of judges, decide on the question of the grounds of the appeal and its possible abusive character. This would be an unacceptable distortion of the rights of defence and of two of its fundamental principles: the guarantee of the impartiality of the judge and the contradictory procedure.

The impartiality of the judges must be effective but also apparent, i.e. the parties to the trial must be convinced of it by virtue of the procedural conditions that are guaranteed to them, and the parties must be able to benefit from a contradictory procedure, i.e., which informs the lawyer sufficiently in advance and in a reasoned manner of the complaint invoking a manifestly abusive appeal, to allow him to prepare his arguments, which the draft law absolutely does not allow.

However, the case-law of the Constitutional Court is clear. An hearing must take place during which the applicant must have the opportunity to explain the abuse of his appeal.

The bars therefore pledged for the organization of a second hearing or the possibility of postponing it. The bill was amended, but not sufficiently, because the solution chosen does not offer the guarantees required by the Constitutional Court, since it is provided only the possibility to suspend a hearing, or even to fix a new date of hearing, without that being an obligation, as soon as the argument of the abuse of the appeal would be raised.

The perverse effects of the single hearing have thus been somewhat mitigated but remain concerned, since this is only a possibility left to the Court of the contentious matter itself. Such a possibility is all the more absurd and contradictory to the principles which I have recalled that it is not difficult to anticipate the attitude that will be adopted by some members of the Council of the Contentious since, from the confession itself of the Secretary of State, the request for the removal of the double hearing comes precisely from the Council of the Contentious.

This was ⁇ defendable from the point of view of the Council of the contentious but not in view of the principle of contradiction and the guarantee of impartiality of judges.

Then, the project suggests that abuse appeals are ⁇ observed in foreign law. Why, then, provide for a specific procedure of sanction for abusive appeals before the Council of Litigation, where the stewards already have legal instruments that allow them to sanction the lawyers who originate abusive appeals, these sanctions can range from a withdrawal of fees or a temporary suspension of the right to exercise the profession of lawyer?

The hearing also highlighted the inutility of such a specific procedure before the Dispute Board. He has, in fact, been reminded by others that there have been only twenty abusive appeals brought before the Council in the last six years and that, within the framework of second-line legal aid, no matter is subject to as many controls as the law of foreigners where the entire procedure is written. The bar orders therefore do not hesitate to refuse the award of points for appeals that they consider abusive or misunderstood.

It follows from your draft that the Court has criteria for assessing the amount of the fine – between 125 and 2 500 euros – but not for assessing the manifestly abusive nature of a appeal. During the preparatory work, the Secretary of State gave an overview of practices that he considered to be abusive. Nevertheless, in view of the sanction intended to be imposed on lawyers and their clients who would have had the will to introduce abusive appeals, it is appropriate that the incrimination of abuse be clearly determined by criteria defined by law. This is an imperative condition of legal certainty, subject to the penalty of entrusting an abusive power to the Council of Litigation with regard to the assessment of what would be a appeal qualified as abusive.

Therefore, given these notable legal deficiencies, the lack of basis and motivation of the mechanisms thus provided by the bill and its increasingly obvious risk of unconstitutionality, we consider that this bill can only be rejected.

Many things have already been said in the committee. I just heard the advice of the balls again. This was discussed extensively in the hearing. Four or five committee meetings were held on the three articles presented today. All questions have already been comprehensively answered, but I will do my best to give, at your discretion, a number of answers again.

First, as Ms. Smeyers has said, we have seen that the current system, which was developed by Mr. Wathelet and the then government, works suboptimally. The organization of a second day of session to decide on a dilatory use does not take place, as the Council for Foreign Disputes had a lag of 30 000 dossiers, and currently 20 000 dossiers. We entered 10,000 files.

Second, the penalty of the migrant is often useless because he is already away or repatriated, because he is impotent or because he is often simply not really aware of the migration procedures in that country. The lawyer then proposes to appeal, whatever he does.

This bill comes at the request of the Council for Foreign Disputes itself. The Council for Foreign Disputes has actively participated in this and has actively promoted this bill. He remains 100% behind it, because he is convinced that it is a good adjustment, which thoroughly improves Mr. Wathelet’s suboptimal law.

I think we should give this project a chance. The current system does not work. Let’s look at whether we can do it in one day of session and whether we can responsabilize the lawyers through the staff holder and partially adjust the penalty system. That is what happened. That’s what precludes in three articles, with two lectures and everything on and on.

I hear that the soup would not be worth the cabbage. We have also heard this in the tightening of the Foreigners Act. I must say that I have not heard it since then. I have heard other things about that law, but I have not heard that it would not be useful.

But okay, let’s look at it. I will ⁇ have a conversation with the future new first chairman of the Council on Foreign Disputes and I will ask him, on behalf of the government, after the law has been published, to pay more attention to dilatory use and to apparently unlawful professions. Let us agree that we will do the evaluation in a year. We will see if there have been more unlawful appeals and if there have been more penalties.

We are fully engaged in it. I have met with the staff holder of the Brussels Bureau and with many partners in the field with the intention of removing the procedure abuse. I think this is going to happen, step by step.

Mr. De Vriendt, you say that we were almost there, that we almost had an agreement. I think we didn’t really negotiate, but well, you can always agree. You almost agreed, I think it should be interpreted this way.

There are two things that continue to strike me at the chest, and which my group also disagrees with. It may be that I have not understood you well, but I have no doubt that you will correct me.

First, there is the negative role of the Foreign Affairs Service. It is true that in some proceedings the Foreign Affairs Service can withdraw a decision and take a new decision without waiting for a judgment. You call that abuse of the Service Foreigners affairs. This is not an abuse of the Foreign Relations Service. That is perfectly legal. I think it is sometimes good and can help the migrant, for example when he has to wait for a decision of the State Council or of the Cassation. That can take a very long time and with long waiting for a judgment in such a procedure, one as a foreigner is not helped at all. A decision is being made on whether or not to obtain a right of residence on Belgian soil.

Mijnheer Francken, mag ik u even interrupken? Mr. Kir asks for the word.

Mr. Speaker, when we speak of abuses of administration, we speak of appeals which are brought by the lawyer who advocates the law of the foreign country and which are the subject of a favorable decision by the Council of the Foreign Contentials.

At this point, your administration withdraws the decision and takes a new decision. This is how we found ourselves, in the Internal Affairs Committee with hearings during which many actors, lawyers, the CIRÉ and many other institutions, explained these situations to us. Systematically, in a certain number of files, your administration, when it loses the part, withdraws the decision! Is this not an abuse for you? Is that not abuse?

At some point, there is a procedure: the lawyer submits an appeal to the Foreign Dispute Council. This board accepts this appeal and the administration withdraws the subject of the decision to take a new decision!

Second round, again, we are in the same situation! There are cases where three or four times, within two or three years, abuses of administration are found. This is also called abuse.

What is reproached, and it has been said by some, is that you see abuses that do not exist, since the abuses of the lawyers you talked about, neither you nor your services, have been able to demonstrate them. In fact, the Flemish and French-speaking bars invited you in February to submit the complaints.

Do you have any complaints? What are we talking about? Why are we gathered today to discuss a bill that is based on nothing, since there is no complaint?

On the other hand, where there are abuses and problems, it is when whole families wait for their regularization or residence permits and your administration challenges the rules, withdraws a decision made and comes back with a new decision. For us, this is an abuse.

Mr. President, Mr. Kir, I think you did not listen properly.

What the Foreign Affairs Service sometimes does is the following, and he did so under the government-Di Rupo and also before. The Foreign Affairs Service sometimes, because it thinks it has little chance of winning, pulls the decision in before the judgment of the RvV and then makes a new decision. This means that the case is without object and that the case is cancelled, there is no object and therefore no judgment. This is what the Foreign Affairs Service has been doing for years because sometimes one thinks that one is unlikely to win a certain case. Then the service withdraws its decision before the RvV has spoken, Mr. Kir, not after. The service then makes a new decision and does not wait for the decision of the Council for Foreign Disputes. This is what actually happens sometimes.

This is not a new practice. I do not give my administration an order to do that. This is nothing new. It has always been so. Mr. De Vriendt, you said that you disagree with this, that there should also be a sanction. I do not think this is an abusive use.

Secondly, you say that those lawyers, of course, should know, if that is in one hearing, that it can eventually lead to a sanction. It is also so. It is also communicated that this can also be discussed, that the judge can also decide on that unlawful use. In that sense it is correct. The lawyer may request the suspension of the proceedings. He may say that he needs time to further dust it and to refute it. For this purpose, the judge of RvV can decide. That is to the judge, that is the discretionary power of the judge. That is logical. In my view, it provides sufficient guarantees that the lawyer can give his defence, even during that first hearing, if the judge directs to a conviction for apparently unlawful use of the appeal procedure.

Mr. Secretary of State, I am not concerned that the Foreign Affairs Service in such cases can withdraw the decision, because that can be done by the service of course. The problem is that the service withdraws the decision because it feels in the wrong to be put by the Council for Foreign Disputes and then almost immediately takes a virtually similar decision, though with a slight deviation, to yet express his own opinion. The lawyer of the foreign person concerned is therefore obliged to lodge an appeal again. To point the lawyers with the finger as if they were initiating a carousel of appeal proceedings is all too easy, because those appeal proceedings are just triggered and initiated by practices of the Foreign Affairs Service. The fact that the Foreign Affairs Service withdraws a decision if it is misplaced is not the problem in itself, but rather that it again makes virtually the same decision.

Second, you talk about the arguments of the lawyer. A lawyer who goes to that one session must not only know whether or not there is a complaint about the unlawful use of appeal procedures, that lawyer must also know which arguments will be thrown before his feet. Otherwise, he cannot defend himself in that one session. It is therefore logical that the lawyer requests a second hearing, with intermittent consideration time so that he can study the counterarguments.

These two points remain, in our opinion, standing up. However, we were close to an agreement in the committee and it was possible to reach an agreement after the debate we held.

Mr. De Vriendt, what you say about the decisions of the Foreign Affairs Service, I find a somewhat strange reasoning.

If the Foreign Affairs Service threatens to lose an appeal, the decision is revoked, but then it will not take almost exactly the same decision? That will almost ⁇ lose the DVZ again. So it is not true that almost the same decision is made, because the DVZ knows that he will not get this legally. The justification shall be adjusted or reinforced in order to win any subsequent proceedings. It would be pretty stupid, in the case of an appeal, to revoke a decision again and then make almost the same decision, in which only half a word or a sentence has been changed. This is addressed differently. What you say about it is not correct.

Second, you say that the lawyer has no guarantees because the lawyer may face a conviction for apparently unlawful use of the appeal procedure, for which he can not adequately prepare. Then you have to tell me how it is that this procedure, with the ruling of apparently unlawful use, has been in the Council of State for years and days. I have never heard you say anything about this or complain about hearing. I have never asked you to submit a bill that would violate the rights of lawyers or the rights of a client in the context of an appeal procedure before the State Council. I have no knowledge of it. There are two sizes and two weights. You say that you cannot approve this bill because you think there are insufficient guarantees for the legal profession. This has been the case in the Council of State for years and days. I have never complained to anyone about it. never ever . How does this actually come about? Explain it to me.

It is not because that practice exists at the Council of State that it is therefore a good practice. From the hearings held following your bill, we learned that this is not good practice. Therefore, it seems to me not a sensible policy to start installing them again now. On the contrary, we should try to do even better every time errors are identified.

Secondly, as regards the practice of the Foreign Affairs Service that I have recently described, I apologize, but it does happen. This, by the way, has been pushed forward as such by the representative of the Order of Flemish Balies that we have heard, as being problematic. This is, therefore, a testimony of the Order of Flemish Balies which points out that the Service Vreemdelingenzaken does indeed act this way, withdraw a decision and then again take almost the same decision, ⁇ in the hope that there is no new appeal, that the lawyer gives it up and that one can thus make the decision stand.

I can only say that it is a good thing that we have had those hearings, that we have heard experts. If the government had met these two objections, we could have approved this bill. So we are advanced. As far as the majority amendment is concerned, as I just said, we have evolved in the right direction. Only the process has stopped at a certain point, so that the opposition has no longer actually the opportunity to join that bill. It is a pity, it could have been different.

Mr. Secretary, we understand your answers. In the end, what are you accused of? You are accused of presenting a draft that aims to sanction lawyers for abuses they would commit in terms of appeals brought before the Council of the Foreign Dispute.

We need a scientific approach that is objective. You are questioned about the complaints, their number, their quantity and you are unable to produce anything. This is what is shocking.

So, if you have to be outraged, it is in relation to the absence of complaint. There is no complaint. There is no problem and we come up with a bill that stigmatizes lawyers who do their profession within the procedures that exist. Currently, sanctions are planned at the bar. And you come up with a bill that stigmatizes lawyers. This is what annoys us and shocks us. And you advance your joker, namely Mr. Wathelet and the socialists who were previously in power. It is to die of laughter!

If there is indeed abuse in the head of the Foreign Office, that this practice already existed before, we will submit a bill to set a framework and to prevent the abuse of public services. Abuses do indeed exist. When a family requests regularization and obtains a positive decision from the Foreign Dispute Council, what does your service do? He withdraws that decision and takes a new one. It is unworthy! How many times has this happened? Three, four times, in some cases.

Remember the medical regularization, Mr. Francken. Interested parties came to the Interior Committee and they testified to the situation. It is a question of seriously ill persons who require only one thing: to be able to receive medical assistance, to be able to benefit from a residence permit and to have a normal life or, in any case, to be able to finish it for a large number of them. What does the administration do? Whenever it feels that the Foreign Contest Council will issue a residence permit, it intervenes to change the decision. This is vicious and it indignates us because today you are stigmatizing lawyers who have nothing to blame.

Mr. Secretary of State, we heard testimony in the committee of the Interior, on the occasion of the hearings of the instances and associations. We therefore ask you to give up this bill that stigmatizes lawyers and that is useless since you have not been able, within six months, to submit a written complaint about a lawyer who would not do his job well.

Mr. Kir, I can understand your indignation. We are in a democracy and I will fight so that you can say what you are saying.

I would just like you to have the same indignation for a country that is close to you and that locks 150,000 people without any decision of law!

Mr. Flahaux, I invite you to judge our colleagues based on their actions and not their genes.

If there is someone who is racist, it is me. This is not a matter of racism. I denounce ideological proximity.

I want to talk about something completely different.

I think you should take the profession of lawyers a little more seriously. Anyone who knows the strangers contentieux and knows what the practices of some appeal proceedings are, sees that the bill that is presented here is necessary. This is also necessary for lawyers who are seriously engaged in their profession. In any appeal procedure, it is the task of the lawyer to be a judge first and to judge whether it is necessary to appeal or not. As for the Foreign Contentieux, it is a consciousness that, whatever some may argue, there are lawyers who systematically initiate copy-paste appeal procedures and thus paralyze the entire system.

If an administration sees that it is wrong and wants to correct that mistake, I also find that no more than normal. Colleague, what you say about the lawyer profession is completely wrong. Even the lawyers themselves are the requesting party to ensure that these appeal procedures are addressed seriously and consider these legislative changes necessary.

I would like to answer my colleague.

In the interior committee, we had the opportunity to hear the testimonies of representatives of the two bars. They all explained that the procedures in force did not pose any problems. In contrast, they regretted the lack of consultation with the Secretary of State. Then, they noted that 19 complaints had been handled over the past six years. In view of the thousands of cases examined, this number is small, or even ridiculous. That’s why they didn’t see why the government came up with a bill.

Their feeling is that Mr. Francken and, unfortunately, the majority, stigmatize the work of lawyers, since the complaints do not exist. I just invited the Secretary of State to present them. But they are non-existent. You know, when you work, you do not waste your time. And Mr. Francken actually loses in Parliament. Why Why ? This allows them to take a political stance. These are political manoeuvres to say of its critics that they defend from foreigners! To keep tapping on the latter, he now targets lawyers, who have nothing to blame – just like foreigners, by the way.

Mr. Speaker, I would like to reiterate that we are against procedural abuse. We have discussed this in the committee for a long time. We need to look at what is the best tool to counter this.

I would like to comment on what the N-VA colleague said. The lawyers themselves asked to look for another way to do so.

To reinforce this last argument.

The hearings were interesting, Mrs. Dumery. The Order of the Flemish Balies, therefore the interest group of lawyers, spoke there and protested against the bill. One wants to address the abuse that ⁇ happens from time to time in a different way.