Belgium – Council for Alien Law Litigation, 15 May 2008, Nr. 11.217

Belgium – Council for Alien Law Litigation, 15 May 2008, Nr. 11.217
Country of Decision: Belgium
Country of applicant: Togo
Court name: Council for Alien Law Litigation
Date of decision: 15-05-2008
Citation: Nr. 11.217
Additional citation: Published in: Rev. dr. étr. 2008 (149), p. 344; T. Vreemd. 2008 (4), p. 286
Belgium_034 decision (0.49Mo)

Keywords:

Keywords
Subsequent application

Headnote:

This case concerned the procedure for considering new evidence in subsequent asylum applications. The CALL found that the Immigration Department had not assessed whether a submitted document constituted a new element or not, but had instead decided that the document would not result in a determination of the existence of serious indications of a well-founded fear of persecution. In doing so, it was found that the Immigration Department had acted unlawfully (Art 51/8 of the Belgian Aliens Law).

Facts:

In 2002, the applicant, of Togolese nationality, had lodged his first asylum application, which had been rejected. Subsequently the applicant, who never left the country, filed two applications for regularisation and both failed. He was apprehended and brought to a closed centre with a view to being removed. On the 25 April 2008 he filed a second asylum application and on the 30 April 2008 he was notified with an order to leave the territory. On the 9 May 05 2008 the Immigration Department made a decision not to take into consideration the applicant’s second asylum application. The applicant lodged an appeal against this decision before the CALL, both for the annulment of the decision and – according to the procedure for extreme urgency – for the suspension of its execution. Decision nr. 11.217 of the CALL deals with this suspension procedure.

Decision & reasoning:

In its decision, the Immigration Department had given the following reasons for its refusal to take into consideration the second asylum application: “in support of the second application the applicant produced a letter from his wife; however, that element would not allow the determination of whether or not there exists, in respect of the applicant, serious indications of a well-founded fear of persecution (…) or serious indications of a real risk of serious harm (…).”

The applicant argued that in taking such a decision the Immigration Department had exceeded its powers. According to the applicant, the Immigration Department had not contested that the letter from his wife was a new element, but had directly ruled that such a document was not of a nature to demonstrate a well-founded fear of persecution. In assessing the new element against the criteria of the 1951 Refugee Convention, the Immigration Department had taken precisely that element into consideration and could not, at the outcome of such an assessment, apply Art 51/8 of the Belgian Aliens Law. It should have transferred the file to the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) for an assessment on the merits of the application.
 
The CALL agreed with the applicant’s reasoning:
 
(1) the CALL referred to the interpretation that the Constitutional Court had given of Art 51/8 of the Aliens Law in its decision 83/94 (see summary elsewhere in this database);

(2) the CALL noted that the applicant had produced a new element, i.e. the letter from his wife of 21 April 2008. The
Council also noted that the Immigration Department had not categorised this document. The Immigration Department had not taken a stance on whether the letter constituted a new element or not, but did consider that “such an element would not allow the determination that there are, in respect of the applicant, serious indications of a well-founded fear of persecution (…).” In doing so the Immigration Department had crossed the legal provision as interpreted by the Constitutional Court.

Outcome:

The CALL ordered the suspension of the execution of the decision not to take into consideration the asylum application.

Observations/comments:

The legal provision, Art 51/8 of the Aliens Law, states:
 
“The Minister or his/her mandate holder can decide not to take into consideration an asylum application when the foreign national has previously filed the same application (…), and he/she does not present new elements that there exist, in his/her respect, serious indications of a well-founded fear of persecution (…), or serious indications of a real risk of serious harm (…). The new elements should relate to facts or situations that have occurred after the last phase in the procedure in which the applicant would have been able to present them.”

 

Relevant International and European Legislation:

Report an issue with this case summary