Belgium - Council of State, 27 February 2020, N° 247156
Keywords:
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
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Sexual orientation
Description
"Sexual orientation refers to: ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender’." According to Article 10(1)(d) of the Qualification Directive: “depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article” |
Headnote:
In a case of an asylum application on the grounds of gender based persecution, supported by medical reports, the Belgian Council of State held that it belongs to the asylum authorities to investigate the origin of injuries, whose nature and seriousness imply a presumption of treatment contrary to article 3 ECHR and to assess the risks they reveal.
Without this assessment, the judge cannot legally conclude that the Applicant does not establish that he has been persecuted or has suffered serious harm or been subjected to direct threats of such persecution or harm.
Facts:
The Applicant, whose country of origin is not mentioned, arrived in Belgium in 2016 and filed an asylum application based on the ground that he had been persecuted for his homosexuality in his country of origin. The application was supported by a medical expertise carried out in accordance with the recommendations of the Istanbul Protocol.
On 14 August 2017, the Commissioner-General for Refugees and Stateless Persons dismissed his application. The Applicant challenged this decision. On 27 November 2018, the Council of Aliens Law Litigation dismissed the appeal considering that the medical reports produced by the Applicant did not make it possible to establish the credibility of his story and that the nature of the after-effects noted in the produced medical documents did not make it possible to conclude that they were resulting from persecution or serious harm.
The Applicant appealed this decision.
Decision & reasoning:
The Council of State based its reasoning on the ECtHR’s decision R.J v. France, dated 19 September 2013, according to which in the presence of medical documents attesting to the existence of injuries on the Applicant's body whose nature and seriousness imply a presumption of treatment contrary to art. 3 ECHR, it belongs to the asylum authorities to investigate the origin of these injuries and to evaluate the risks they reveal.
The Council of State added that without this assessment, the judge cannot legally conclude that the applicant does not establish that he has been persecuted or suffered serious harm or been subjected to direct threats of such persecution or harm.
The appeal was granted and the Council of State referred the case back to a different chamber of the Council of Aliens Law Litigation.
Outcome:
The appeal was granted and the Council of State referred the case back to a different chamber of the Council of Aliens Law Litigation.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - R.J. v. France, Application No. 10466/11 |