Belgium - Council for Alien Law Litigation, X v. Commissioner General for Refugees and Stateless Persons, No. 258 932, 02/08/2021
| Country of Decision: | Belgium |
| Country of applicant: | Ivory Coast |
| Court name: | Council for Alien Law Litigation |
| Date of decision: | 02-08-2021 |
| Citation: | Belgium, Council for Alien Law Litigation, X v. Commissioner General for Refugees and Stateless Persons, No. 258 932, 2 August 2021 |
Keywords:
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Country of origin information
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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. |
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Persecution Grounds/Reasons
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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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Inadmissible application
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Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
Headnote:
HIV-related marginalisation and discrimination can reach the threshold of seriousness to establish persecution but is not sufficient to be granted international protection. In order to benefit from international protection, it must be established that there are personal reasons for a well-founded fear of being persecuted due to HIV-contamination. In this context, seropositivity can be regarded as being part of a social group, which is a valid persecution ground. In the case at hand, the Court took into account aspects of vulnerability which are unrelated to HIV-status.
Facts:
The applicant applied for international protection in Belgium. The application was rejected because her credibility was questioned and the facts she alleged could not be established. She did not appeal against the decision.
Years later, she made a subsequent application, in which she added a psychological certificate and medical report. She claimed a risk of ill-treatment upon return due to her AIDS diagnosis and stated that she would be driven to commit suicide. Additionally, she feared that she would end up in the street because she has no family there and that she would not receive the medical treatment she receives in Belgium. The application was declared inadmissible because no new elements or facts appeared that could significantly increase the likelihood to be granted international protection. Moreover, the authorities decided that the arguments based on her medical and psychological treatment are unrelated to an application for international protection and are better fit for an application for medical-related regularisation.
Moreover, the authorities seriously doubted the probative force of the psychological certificate because the essential elements were contradictory to those added to her first application. The authorities concluded the same regarding the medical report, stating that it cannot be recognised as having sufficient probative force to establish sexual abuse and other ill-treatment.
On the fear that she would be ill-treated because of her AIDS diagnosis, the authorities decided that she could not provide concrete, precise and personal elements to establish that fear.
The applicant appealed against the decision of non-admissibility.
Decision & reasoning:
The Court examined different documents to establish the vulnerability of the applicant which arose from her AIDS diagnosis, her family situation (orphan), and those related her arrival in Belgium as an unaccompanied minor, as well as indications of harm related to sexual assault and serious psychological problems. The Council noted that these elements are not contested in the decision and considered them sufficiently established.
Regarding the applicant’s fear of stigmatisation, discrimination and marginalisation in Ivory Coast due to her HIV status, the Council considered information on the country of origin provided by the applicant, and decided that these elements are likely to reach the threshold of seriousness required to constitute persecution. However, the Council also needed individual elements to demonstrate that she has a well-founded fear of being persecuted. While the first-instance authority found that there was a lack of concrete, precise and personal elements, the Council decided that the applicant was interviewed in a laconic and superficial way. It stated that the ill-treatment during her childhood, in particular the sexual abuse by her uncle leading to her pregnancy at 13 years old, her being an orphan, being chased by her family on account of the teenage pregnancy, the psychological and physical stigma because of these traumas and her HIV-diagnosis would expose her to discrimination, stigmatisation and violence in case of return. Taken together these elements meet the required seriousness for establishing persecution on an individual basis.
Based on an analysis on the situation of AIDS patients in the Ivory Coast, the Council found that the applicant cannot seek adequate protection by the local government. Regarding the necessary grounds for persecution, the Council considered HIV/AIDS patients in Ivory Coast as a social group and decided that the applicant belongs to the latter.
Outcome:
Appeal granted
Observations/comments:
This summary was written by Frances Vervaet, student at the Human Rights and Migration Law Clinic at the University of Gent.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Art 48/3 |
| Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Artikel 48/5 |
Cited Cases:
| Cited Cases |
| CJEU - C-652/16 Ahmedbekova, 4 October 2018 |