Three misconceptions about migration (law) analysed

Migration remains a topic that resonates and stirs strong emotions. Many believe that migrants ‘have it too easy’, or that ‘judges go too far’ when it comes to protecting refugees. But what is the reality? Professor Ellen Desmet, an expert in migration law puts three common misconceptions about migration law into perspective. 

Misconception 1: “Refugees should just come to Europe legally if they want to apply for asylum.”

Why doesn’t someone who is fleeing simply arrive with the correct papers? According to migration law expert Ellen Desmet that is precisely the problem. “It’s an absurd situation. You can only apply for protection once you are physically in Belgium or at the border of a European country, but to get there, you generally need a visa.” 

A visa is an official authorisation to enter a country and stay there temporarily. You don’t get one simply by saying you want to apply for asylum. Only tourists, those visiting family or friends, or intending to study or work, can apply for a short-stay visa. You must also be able to prove that you plan to return and that you have sufficient financial means to do so. “For people fleeing war or persecution, coming to Europe legally has become almost impossible. That is why many try to reach Europe on their own, often with the help of smugglers,” Ellen explains.

Another way to enter Belgium legally is through resettlement. “This involves the UN refugee agency selecting vulnerable refugees who have already sought protection in another country, such as Congolese who fled to Rwanda. They are brought to Belgium safely through resettlement to start a new life here. In 2024, this involved 487 people. In March 2025, the Belgian government decided to halt resettlements due to the reception crisis.” 

On rare occasions our country also organises rescue operations. “For example, the Belgian government evacuated a number of people from Afghanistan after the Taliban’s takeover.” 

According to Professor Desmet, European policy makes it extremely difficult for people to seek protection. Strict border controls, visa requirements and fines for airlines transporting people without the correct papers mean that legal access is almost impossible. 

“It’s a catch-22. We shift the responsibility onto the refugees themselves, while we have all but completely cut off the legal avenues for seeking protection here."

Misconception 2: “Judges are (too) activist in migration cases.”

The European Court of Human Rights (ECHR) is often criticised for ‘going too far’ in its interpretations, for overprotecting the migrants’ rights and for leaving states too little room to control their borders. 

This is incorrect, according to Ellen. “That narrative doesn’t align with what scientific research shows: the European Court of Human Rights is actually stricter with migrants than with other groups. A striking example: the Court is more likely to consider it acceptable to detain an asylum seeker than a criminal suspect. This is remarkable, as you would expect people fleeing persecution to receive extra protection.”

This strictness is also evident in other rights, such as the right to family life or the prohibition of inhuman treatment. “The Court sets a high standard for migrants while giving states considerable leeway to shape their migration policies. The political accusation of ‘activism’ is not only incorrect but also misleading.”

However, this doesn’t change the fact that in the past, the Court has issued rulings that provide better protection for migrants. “Think of the ruling on boat refugees in the Mediterranean more than a decade ago, or the case in which Belgium was condemned for returning an Afghan asylum seeker to inhuman conditions in Greece. Those rulings did spark some change,” says Ellen Desmet, “but in recent years the Court has adopted a more cautious attitude.”

Moreover, the European Court is by no means always responsible for migration rules as it oversees general human rights. Laws on reception or asylum are usually issued by the European Union, through negotiation with member states and votes in the European Parliament. “If our executive branch ignores rulings on reception because they hinder policy, it undermines the rule of law,” warns Ellen. “Today, that is dangerous for people fleeing persecution, but tomorrow it could affect detainees and pensioners the day after. It’ a slippery slope.

Misconception 3: “Family reunification is too easy in Belgium.”

A third commonly heard claim is that it’s easy for migrants to bring their family to Belgium. Research shows that family reunification is actually extremely difficult. The rules have become stricter in recent years. Refugees have to surmount huge bureaucratic obstacles when they want to be reunited with their families.

For people with ‘subsidiary protection’ in particular, the procedure for family reunification has become even more difficult, expensive and protracted than for recognised refugees. “This group not only has to meet very strict requirements regarding income and housing but must also wait two years before their family members are allowed to submit an application for family reunification.”

There is also a small but highly vulnerable group that is particularly affected: unaccompanied minors with subsidiary protection. “They can no longer bring their parents over."

This may seem irrelevant to your own situation but the ever-stricter rules don’t just apply to people fleeing persecution. Belgian citizens who want to bring a foreign partner to Belgium face the same conditions. “For example, someone who meets a partner with a non-European nationality during an Erasmus exchange, must prove that they meet the requirements regarding income and housing. In my book, there is also the story of an Argentinian woman who married here and naturalised as a Belgian citizen. She is no longer allowed to bring her ailing mother to Belgium.”

The strict rules are at odds with what we expect from people fleeing persecution. "We want them to find a job, learn Dutch and integrate quickly but how do you do that if you don’t know whether your children and partner will ever be allowed to come to Belgium? Research shows that this uncertainty causes enormous stress. Family reunification is not a favour, it is a necessary condition for successful integration."