Belgium - Council for Alien Law Litigation, 30 May 2013, No. 103856
Keywords:
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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. |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
Headnote:
The Council for Alien Law Litigation confirmed that those who enjoy subsidiary protection are equivalent to recognised refugees, for the purposes of family reunification. This means that they are exempted from additional conditions in relation to housing, health insurance, and means of subsistence provided that the application for family reunification is submitted within one year and the family ties existed before the arrival in Belgium of the reuniting person (who enjoys subsidiary protection). This is despite the fact that those who enjoy subsidiary protection do not fall within the scope of application of the Family Reunification Directive.
Facts:
The Applicants are Iraqi nationals and fled in 2007 to Syria, where they then remained. They submitted a visa application for the reunification of their family to join their spouse and father in Belgium. The Immigration Office refused the visa as their spouse and father, who enjoyed subsidiary protection, had no stable, regular, and sufficient means of subsistence. An application for nullification was submitted against this decision.
Decision & reasoning:
Article 10(2)(5) of the Aliens Act exempts those who enjoy subsidiary protection, as it does recognised refugees, from the conditions of having suitable housing, health insurance, and a stable, regular, and sufficient means of subsistence, provided that the application for the family to be reunited is submitted within one year from protection status being granted and the family ties existed before the person reuniting his family arrived in Belgium. The Applicants said that they complied with these requirements and that the Immigration Office could not therefore refuse their application for family reunification on the grounds of lack of means of subsistance. The Immigration Office took the view that this provision did not apply, as Article 10 of the Aliens Act, in its opinion, applies only to individuals with an unlimited right to remain. In this case, the person reuniting his family had a limited right to remain and were therefore subject to Article 10bis, which governs family reunification for individuals with a limited right to remain. This article provides for no exception to the 'means of subsistence' condition.
The Council for Alien Law Litigation found that the Applicants complied with the conditions for family reunification set out in Article 10(2)(5) of the Aliens Act. The person reuniting his family did not have unlimited right to remain, the condition imposed under Article 10(1)(1)(4) of the Aliens Act. The Council for Alien Law Litigation noted, however, that anyone enjoying subsidiary protection is granted a right to remain valid for just one year, which can be extended, and that only after five years is indefinite right to remain granted.
The Council for Alien Law Litigation decided that the two conditions imposed under Article 10 of the Aliens Act, namely the submission of an application within one year and the enjoyment of an unlimited right to remain, were incompatible for those enjoying subsidiary protection.
Even though the Family Reunification Directive (2003/86/EC) does not apply to those enjoying subsidiary protection, as cited by the Immigration Office, the preparatory parliamentary materials for the Belgian legislation and Article 10(2)(5) of the Aliens Act indicate that the Belgian legislator did not want to distinguish between recognised refugees and those enjoying subsidiary protection. The Council for Alien Law Litigation indicated that, when a directive is transposed, more favourable provisions may be adopted or maintained, as stipulated explicitly in Article 3(5) of the Family Reunification Directive.
By disregarding Article 10(2)(5) of the Aliens Act, the Defendant breached this provision of law.
Outcome:
The application for nullification was granted.
Subsequent proceedings:
The case was sent back to the Immigration Office for re-assessment.
Observations/comments:
This case concerns a procedure for the nullification of a decision by the Immigration Office. In matters of family reunification, the Council for Alien Law Litigation does not have full legal powers, as it does in relation to asylum cases, to overturn decisions by the Office of the Commissioner General for Refugees and Stateless Persons. A previous application for suspension in the case of extreme urgency was rejected (Council for Alien Law Litigation, judgment No. 91.38912, of November 2012).
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Art 10 |
| Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Art 49/2 |
Other sources:
Explanatory Memorandum to the Act of 8 July 2011 (Parl. St. 2010–2011, Doc. 53, 0443/001, p. 5)
Advice by the Council of State No. 49 356/4 of 4 April 2011 (Parl. St. 2010–2011, Doc. 53 443/015, pp. 10–11 and 13)