Belgium - Council for Alien Law Litigation, 24 June 2010, Nr. 45.397

Belgium - Council for Alien Law Litigation, 24 June 2010, Nr. 45.397
Country of Decision: Belgium
Country of applicant: Iraq
Court name: Council for Alien Law Litigation
Date of decision: 24-06-2010
Citation: Nr. 45.397
Additional citation: Published in: Rev. dr. étr., 2010, nr. 158, p. 199; T. Vreemd., 2010, nr. 3, p. 262
Belgium_003 decision (0.15Mo)

Keywords:

Keywords
First country of asylum
Safe third country

Headnote:

In a general assembly decision, the CALL held that the concepts of “safe third country” and “first country of asylum” have no ground in Belgian law and that Art 26 and 27 of the Procedures Directive have no direct effect. Further, that the well-founded fear of the applicant should be assessed against the country of nationality (or, for stateless persons, the country of their former habitual residence). 

Facts:

The applicant is an Iraqi national who fled with his family to Jordan in 1994. The family filed an application for asylum with the UNHCR representation in Jordan. In the years following the family had received temporary residence permits from the Jordanian authorities. In 2008 the applicant was arrested in Jordan for working without the required permits. The applicant claims that he was detained for a number of days, beaten and tortured. He was released near the Iraqi border. The applicant then travelled to Belgium and filed an application for asylum. In 2009 the Jordanian UNHCR representation rejected his application. The Belgian authorities also rejected his application, mainly because of several contradictions in the applicant’s account. The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) ruled that it was not established that the applicant had problems in Jordan and that he could no longer live safely in that country. As a result of the applicant’s 14-year stay in Jordan, the CGRS ruled that Jordan could be considered as a “safe third country.” The applicant filed an appeal against this decision.

Decision & reasoning:

In its decision the CALL examined whether the CGRS was correct in assessing the applicant’s situation in Jordan. At the hearing before the CALL the CGRS defended its position by arguing that Art 26 (“first country of asylum”) and 27 (“safe third country”) of the Procedures Directive might not be transposed into Belgian law, but that it could nonetheless apply the concept of “real residence alternative” when the following conditions were met:

(1) there is a realistic possibility of residence,

(2) there is a realistic possibility of return,

(3) there is no fear for persecution or serious harm, and

(4) there is no risk of refoulement.

The CALL disagreed entirely with this approach. In its reasoning the CALL firstly examined in which countries the well-founded fear of persecution should be assessed. Referring to Belgian law and to Art 2 (k) of the Qualification Directive, the CALL concluded that this was the country of nationality (or, for stateless persons, the country of their former habitual residence). In the case at hand it was undisputed that Iraq was the country of the applicant’s nationality. The CALL subsequently held that the concepts of “safe third country” and “first country of asylum” have no grounds in Belgian law and that Art 26 and 27 of the Procedures Directive have no direct effect. Also the CGRS’s concept of “real residence alternative” found no ground in Belgian law or any international rule with direct effect. The applicant’s application had to be examined in Iraq, his country of nationality. Given the lack of information in the case file regarding the situation in Iraq (and the fact that the CALL had no investigative powers), the CALL quashed the decision of the CGRS and sent the case back for further examination.
 

Outcome:

The decision of the CGRS was quashed and the case was sent back to the CGRS for further investigation and a new decision.

Subsequent proceedings:

On the 9 February 2011 the CGRS granted subsidiary protection to the applicant, implicitly confirming the CALL’s reasoning.

Observations/comments:

This decision was taken by the General Assembly of the CALL, in which all the judges – from both the Dutch and French language chambers – sit. The purpose of such decisions is to ensure the unity of the CALL’s caselaw.

Relevant International and European Legislation:

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