Belgium – Council for Alien Law Litigation, 29 April 2020, n° 235 658
| Country of Decision: | Belgium |
| Country of applicant: | Afghanistan |
| Court name: | Council for Alien Law Litigation |
| Date of decision: | 29-04-2020 |
| Citation: | Belgian Council for Alien Law Litigation, 29 April 2020, n° 235 658 |
Keywords:
| Keywords |
|
Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
|
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. |
|
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. |
|
Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
|
Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, 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, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
|
Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
|
Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
Headnote:
In the case of an Afghan Shia Hazara applicant, the Belgian Council for Alien Litigation considered that the request for international protection was based on several sources of fear, which must be analysed in combination with each other, forming a cluster of concordant evidence.
The Council granted the applicant refugee status.
Facts:
The Applicant is an Afghan national, Shia Muslim, of Hazara ethnicity. He arrived in Belgium in August 2010, with his brother. Between August 2010 and June 2015, the applicant filed five asylum applications in Belgium on the grounds that he feared persecution from the Taliban in his home country.
The Commissioner-General for Refugees and Stateless Persons (CGRSP) rejected all five applications deciding that Applicant had not satisfied the standard of proof in establishing his origin from Ghazni in Afghanistan.
The Applicant appealed the last decision.
Decision & reasoning:
The Council for Alien Law Litigation (the Council) stressed that the debate between the parties focused on the credibility of the Applicant's statements regarding the facts alleged, and hence on the existence of a well-founded fear.
The Council recalled that where an applicant for international protection is primarily responsible for providing the information necessary for the examination of his application, the competent authority is responsible for examining and assessing the relevant elements of the application in cooperation with the applicant for international protection. To this end, the authority must in particular take into account all relevant information relating to the applicant's country of origin in accordance with Article 48/6 (5) (a-d) of the Law of 15 December 1980.
The Council considered in particular the following information:
- The Hazaras, who are mainly Shiites, have long been marginalised and discriminated against by the Sunni population. The applicant's Afghan nationality, Hazara ethnic origin and Shia Muslim faith are not contested.
- In relation to the applicant's family profile, it is also not disputed that his brother, his companion and his daughter have been recognised as refugees in Belgium.
- The applicant arrived in Belgium in August 2010, i.e. almost ten years ago when he was in his twenties. Given the length of his stay in Belgium, it is undeniable that he is integrated into the Western way of life.
In light of these elements, the Council held that the applicant's statements find a certain resonance on reading the general information in the file relating to his country of origin, and that the fears expressed by him should be considered as well-founded (Art. 48/3 of 15 December 1980 Law), at least for the benefit of the doubt.
Consequently, the Council considered that the Applicant's request for international protection was based on several sources of fear, which must be analysed in combination with each other, thus forming a cluster of concordant evidence.
The appeal was successful and the refugee protection was granted.
Outcome:
Appeal granted.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| (4) |
| 15 December 1980 Law (Loi du 15 décembre 1980 sur l’accès au territoire le séjour l’établissement et l’éloignement des étrangers) |
| articles 48/6 (1) |
| (5) |
| 48/3 and 48/4 |
Other sources:
Domestic Case Law cited
CCE, 20 November 2017, n° 195 227
CE, 19 May 1993, n° 43.027
R.A.C.E. 1993
CCE, 14 September 2007, n° 1725
CCE, 14 December 2007, n° 5024
CCE, 10 September 2010, n° 47.964
Other Sources cited
UNHCR, Eligibility Guidelines for Assessing the InternationalProtection Needs of Asylum-Seekers from Afghanistan, 30 August 2018, p. 93 - 94
EASO Country Guidance note: Afghanistan, June 2019, p. 69 - 70
Swiss Refugee Council Report, Afghanistan : risk profiles, 12 September 2019, p. 15 - 16