Belgium – Council of State, 18 March 2009, Nr. 191.585
Belgium – Council of State, 18 March 2009, Nr. 191.585
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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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. |
Headnote:
This case considered whether or not an applicant should be granted a right of appeal, where he had committed fraud in his asylum claim. The Council of State ruled that the general principle of law “fraus omnia corrumpit” (fraud corrupts everything) does not preclude the fact that an applicant has a lawful interest in order to appeal a negative decision of the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) with the Council for Alien Law Litigation (CALL), unless it transpired that the appeal itself was tainted by fraud.
Facts:
The applicant, an Iraqi national, lodged an appeal with the CALL against a negative decision of the CGRS, dismissing his asylum claim. The CALL, however, found that the CGRS had based its decision on the fact that the applicant had deliberately attempted to mislead the Belgian authorities by using false documents to prove her identity and origin, and because it transpired that in her first application for asylum, she had assumed the identity of a friend.
The CALL considered that an appeal could only be admissible if the applicant demonstrated that she suffered harm from the decision being challenged or had an interest in having that decision quashed or overturned (Art 39/56, first paragraph, Belgian Alien Law). Following case law from the Council of State, the CALL further considered that such an interest should be personal, direct, current and lawful.
The CALL ruled that the general principle of law “fraus omnia corrumpit” (fraud corrupts everything) affects the lawful character of the interest, if it is being attempted to intentionally mislead the Belgian asylum authorities in order to obtain refugee or subsidiary protection status.
In the case at hand, the CALL declared the applicant’s appeal inadmissible because the required lawful interest was lacking. The applicant filed an appeal against this decision with the Council of State.
Decision & reasoning:
The applicant argued that the principle “fraus omnia corrumpit” could in no way be used in an asylum case, neither to deny the application, nor to question its credibility. According to the applicant, “good faith” was not a requirement in the 1951 Refugee Convention; the fact that an applicant is not acting in good faith, does not mean that there is no risk of persecution in their country of origin. In the case at hand, the CALL should have examined the merits of the applicant’s facts and declarations in her second asylum application. It could not have ruled that the applicant was lacking the required interest.
The Council of State sided with the applicant and ruled: “that the general principle of law ‘fraus omnia corrumpit’ does not impinge on the fact that an alien has a required lawful interest to appeal a negative decision of the CGRS with the CALL, except if it were to transpire that the appeal itself is tainted by fraud.” The Council of State concluded that the CALL had wrongly ruled that the applicant’s appeal was inadmissible in application of the principle of “fraus omnia corrumpit”.
Outcome:
The decision of the CALL was quashed and the case was sent back to the CALL (different Chamber) for a new decision.