In a judgment dated October 23, 2023, the Court of First Instance of Brussels condemned the Immigration Office (DVZ). The Immigration Department must make a complete organizational chart with contact details of its officials available to the Flemish Bar Association.
Active transparency of government and poor accessibility of the Immigration Department justify the demand for contact details
The claim, brought by the Flemish Bar Association and lawyer Kati Verstrepen, was aimed at obliging DVZ to publish a complete organizational chart on its website or at least to communicate it to the legal profession. This question is based on:
- Article 2, 2° of the Act on Public Access to Government, the so-called ‘active public access to government’, which prescribes that each federal administrative authority publishes and makes available to anyone who requests it a document describing its powers and its internal organization;
- a similar case from Rb. Brussels of 22 August 2011, whereby the French Bar Association in Brussels and a lawyer specialized in immigration law obtained the same;
- the poor functioning, understaffing and long processing time of files at the Immigration Office, which makes it necessary for lawyers to follow up a case specifically and send reminders to the appropriate official;
- an academic dissertation, a report from the Court of Audit to the Chamber of Representatives and an audit report from the asylum and migration services showing that the Immigration Office is difficult to reach;
- the absence of certain internal services and the availability of only one general number for certain services in the contact list made available by DVZ on its website.
Based on these arguments, the court considers it sufficiently proven that the communication and accessibility of DVZ does not meet what can reasonably be expected from a federal administrative authority. The available list of DVZ contact details, which could possibly suffice if the telephone numbers and e-mail addresses contained therein were easily and actually accessible, is insufficient to enable lawyers to properly follow up and guide cases.
The court is of the opinion that it is sufficient to make available to the legal profession. A publication of this list on the DVZ website is not required, as it can be justified that a more detailed list is made available to professionals such as lawyers than to the general public.
No abuse of private life by DVZ officials
DVZ’s criticism that this would expose its officials to abuse in the private sphere is rejected by the court:
- this concerns purely professional contact details of the data subjects, which are already stated on an individual basis in every outgoing correspondence;
- According to the court, the proper functioning of a government service requires a minimum of identification of the persons who work for that service;
- Providing contact details does not imply that the officials involved must be continuously available. The DVZ is free to make reasonable practical arrangements regarding, for example, the time at which certain services or officials can be reached.
Striking passage about penalty payments: nostalgia for constitutional fair play in asylum and migration
The requested symbolic compensation of one euro is rejected by the court because it has not been proven that any damage was suffered.
The request for a penalty is granted. The motivation for this is remarkable to say the least. The court states that it looks back with “a certain nostalgia” to the time when a court decision was complied with voluntarily and in good faith. Current events show that “such constitutional fair play” in the policy area of asylum and migration is a thing of the past. Furthermore, the Immigration Office has apparently consciously chosen to discontinue the existing practice based on the similar conviction of August 22, 2011.
The court concludes that the list of contact details must be provided within seven days after service of the judgment and imposes a penalty of 500 euros per day of delay.