Belgium - Council for Alien Law Litigation, 17 April 2020, n°235 277
Keywords:
| Keywords |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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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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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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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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Previous persecution
Description
"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “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.” |
Headnote:
The fact that an asylum seeker has already been persecuted in the past or has been subject to direct threats of persecution, was considered as a well-founded argument to believe that the applicant would face the risk to be persecuted under Article 1, Section A §2 of the 1951 Refugee Convention.
Facts:
The applicant, a Guinean national with Fulani origins, appealed against the decision of the Commissioner General for Refugees and Stateless Persons (CGRS) on inadmissibility of a subsequent international protection application.
The applicant was already denied refugee status and subsidiary protection by CGRS in 2014. He claimed that because of his political opinion and activism within the opposition party in Guinea his family and himself feared (the risk of) persecution. The CGRS disputed the credibility of the applicant’s personal narrative and of his documents. Consequently, the applicant’s appeal before the Council for Alien Law Litigation (CALL) was rejected.
In 2014, the applicant applied a second time for international protection with new elements and documents but the CGRS declared the second application inadmissible. The applicant appealed against this decision before the CALL. The Council decided to annul the CGRS’ decision and sent it back to the CGRS.
The applicant submitted documents with new elements about his psychological and medical conditions that could have hampered his personal narrative due to PTSD symptoms. The CGRS rejected these new elements based on Article 57/6/2 of the 15 December Law stating that they were not increasing the chance to be granted international or subsidiary protection in Belgium and concluded that the application was inadmissible. The applicant brought that decision in front of the CALL.
Decision & reasoning:
The CALL recalled that there was an obligation to assess the new elements and documents submitted by the applicant. The applicant disputed the CGRS’s decision based on two legal provisions: the abuse of authority under Article 57/6 §3 of the 15 December 1980 Law and the error of appreciation in violation to Articles 48 to 48/7 and 57/6/2 §1 of the 15 December Law. The applicant requested to be granted international or subsidiary protection or at the last resort, to annul the CGRS’ decision.
Firstly, the CALL recalled that the burden of proof has to be carried out by the asylum seeker in accordance to Article 48/6 §1 and §4 of the 15 December 1980 Law and Article 4 §1 of the 2011/95/EU Directive. Secondly, the CALL pointed out that the Commissioner in charge of the case has the obligation to assess all the elements submitted by the applicant and justify his/her decision.
Finally, the CALL recalled that the disputed question was the fair assessment of the new elements submitted by the applicant, in order to conclude if there were additional elements that increased his chances to be granted international protection.
The CALL focused its assessment on his medical and psychological certificates delivered by professionals treating regularly the applicant. These certificates attested to the chronic PTSD symptoms and the proof of previous sexual violence that he declared having suffered in Guinea. Considering those medical reports, the CALL found the applicant’s story to be credible and indicative of his good faith.
The CALL concluded that, under Article 48/7 of the 15 December 1980 Law, the fact that an asylum seeker has already been persecuted in the past or has been subject to direct threats of persecution, was considered as a well-founded argument to believe that the applicant would face the risk to be persecuted under Article 1, Section A §2 of the 1951 Refugee Convention.
The applicant was granted international protection.
Outcome:
Appeal granted.
Observations/comments:
This summary was drafted by Clémentine Le Roy, LLM student at the Gent University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| le séjour |
| l’établissement et l’éloignement des étrangers) |
| Articles 48 |
| 51 and 57 15 December 1980 Law (Loi du 15 décembre 1980 sur l’accès au territoire |