Belgium - Brussels Labour Tribunal, 7 December 2015, 2015/3098

Facts:

The case relates to a 17 year old Afghan national who arrived in Belgium as an unaccompanied minor. The next day, on 30 November 2015, he applied for asylum in Belgium, by presenting himself to the Immigration Office and submitting an asylum claim form in writing. He was given a ‘convocation’ appointment to officially register his claim on 17 December 2015 but was not given the ‘Annex 26’ document as proof of registration of his asylum claim. As a result, he was not given accommodation by the federal agency for the reception of asylum seekers, Fedasil, and was forced to sleep on the streets.

His lawyer applied on his behalf to the President of the Brussels Labour Tribunal for an order requiring Fedasil and the Belgian state to provide him accommodation adapted to his needs. This was deemed inadmissible on 1 December 2015 as it did not meet the condition of ‘absolute necessity’, with the court reasoning that the applicant had been able to provide for his own subsistence and accommodation during his three month journey from Afghanistan to Belgium, and he had chosen not to claim asylum in Germany.

An appeal was lodged against this decision on 3 December 2015, to the Brussels Labour Court. 

Decision & reasoning:

Considering first the condition of absolute necessity, which is required for such interim measures to be put in place, the Court noted that the law obliges federal authorities to urgently consider asylum claims introduced by unaccompanied minors. It referred to the recent ECtHR ruling in V.M. and Others v. Belgium, where it was found that the conditions that a vulnerable asylum seeking family, including several minors, were exposed to whereby they were living on the streets, amounted to inhuman and degrading treatment contrary to Article 3 ECHR. In view of this, and the fact that the applicant, a minor, was also forced to sleep on the street, the Court considered the condition of necessity had been satisfied.

The applicant was exposed to a risk of significant harm, as a minor left on the streets. Domestic law required asylum seekers to be granted accommodation to respect their right to human dignity, which should be granted from the lodging of the asylum application. However, domestic law did not define what the ‘introduction of an asylum claim’ consisted of, stating only that the claim should be submitted to the Immigration Office, the designated authority.  

The Court considered the provisions of the recast Asylum Procedure Directive, which states that an application for international protection is deemed to have been introduced when a form is presented. In addition, the recast Reception Conditions Directive requires material reception conditions to be provided from the stage of application. This meant that the applicant had raised a prima facie case that he should be considered to have lodged his asylum claim on 30 November 2015, when his form was submitted. He should therefore be entitled to accommodation, as domestic law should be construed in accordance with the Directives.

As a result, the Court ordered Fedasil to immediately accommodate the applicant in a reception centre adapted to meet his needs, or face a 125 euro per day fine, to begin from 3 working days of notification of the judgment. The Court did not find it appropriate to condemn the State, given that Fedasil was the agency responsible for accommodating asylum seekers.  This is a provisional measure under the Courts powers to urgently intervene and does not definitively rule on the legal situation of the parties.

Outcome:

Application granted, with Fedasil ordered to provide the applicant accommodation, or face a fine. The measure will cease to have effect if the applicant does not attend his scheduled interview at the Immigration Office. 

Observations/comments:

This judgment is significant as it indicates that any person that submits a form to the Immigration Office stating that he/she wishes to apply for asylum should be considered to have lodged their claim. This in turn means that they have the right to material reception conditions, including accommodation, straight away. This has the potential to affect a number of other asylum seekers who have been forced to sleep on the streets for the same reasons. However, the judgment placed weight on the fact that the applicant was an unaccompanied minor, and particularly vulnerable as a result, so it remains to be seen whether the judgment will have a wider impact.

It is to be noted that the judgment solely tackles the modalities of lodging an asylum claim and the ensuing obligations of accommodation. The decision says nothing on the application for asylum, distinct from lodging/ registering a claim as evidenced in Article 6 of the recast Asylum Procedures Directive. It is therefore silent on whether reception conditions should apply at the “application” stage, arguably so given Article 17(1) of the recast Reception Conditions Directive. 

Other sources:

H. BOULARBAH, ‘L'Intervention du juge des référés par voie de requête unilatérale : conditions, procédure et voies de recours’ 2003