Belgium - Council for Alien Law Litigation, 25 May 2016, No. 168363
| Country of Decision: | Belgium |
| Country of applicant: | Palestinian Territory |
| Court name: | Council for Alien Law Litigation |
| Date of decision: | 25-05-2016 |
| Citation: | X v Minister of Asylum and Migration [2016] CCB 168.363 |
Keywords:
| Keywords |
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Accelerated procedure
Description
Prioritisation or acceleration of any examination in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive, including where the application is likely to be well-founded or where the applicant has special needs or for any of the reasons in Article 23(4) of the Asylum Procedures Directive |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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Visa
Description
"The authorisation or decision of a Member State required for transit or entry for an intended stay in that Member State or in several Member States. The nature of the visa shall be determined in accordance with the following definitions: (i) ‘long-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that Member State of more than three months; (ii) ‘short-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that State or in several Member States for a period whose total duration does not exceed three months; (iii) ‘transit visa’ means the authorisation or decision of a Member State for entry for transit through the territory of that Member State or several Member States, except for transit at an airport; (iv) ‘airport transit visa’ means the authorisation or decision allowing a third-country national specifically subject to this requirement to pass through the transit zone of an airport, without gaining access to the national territory of the Member State concerned, during a stopover or a transfer between two sections of an international flight. Note: For some third countries (specifically, and as of December 2011, Albania, Bosnia and Herzegovina, FYR of Macedonia, Georgia, Moldova, Montenegro, Serbia, Russian Federation and Ukraine) there are Visa Facilitation Agreements which facilitate, on the basis of reciprocity, the issuance of visas for an intended stay of no more than 90 days per period of 180 days to the citizens of the European Union and the third country party to the agreement. These are often concluded at the same time as Re-admission Agreements." |
Headnote:
The applicant challenged the Belgian Minister of Asylum and Migration’s decision not to grant him a humanitarian visa via an emergency application before the CALL. He relied on the following grounds: inter alia, (i) his medical condition and (ii) the poor living conditions of the West Bank in Palestine.
The CALL decided (i) these two elements justified an urgent decision, (ii) there was a risk of serious prejudice which would be difficult to remedy if the Minister’s decision was enforced, and (iii) there were serious grounds for invalidating the Minister’s decision since denying a visa to the applicant was likely to constitute a breach of art. 3 of the European Convention on Human Rights (ECHR) (prohibition of inhuman or degrading treatment), thus fulfilling the three conditions under art. 39/82 of the Belgian Aliens Law 15-12-1980.
Facts:
On 30 March 2016, an adult Palestinian national requested a humanitarian visa from the Belgian Minister of Asylum and Migration because of (i) his medical condition (epilepsy), (ii) the terrible living conditions in the West Bank in Palestine and (iii) the fact that part of his family was granted refugee status in Belgium (being adult, he cannot request a family reunification visa).
On 4 May 2016, his request was dismissed because the applicant had not evidenced (i) his isolation/lack of familial ties in the West Bank, (ii) that his life or his physical integrity would be threatened or (iii) that his medical conditions prevent him from supporting himself.
On 23 May 2016, the applicant filed an emergency application before the CALL in order to obtain a suspension of the Minister’s refusal to grant him a visa. The applicant also requested for the CALL to order the Minister to make a new decision within 48 hours.
Decision & reasoning:
Emergency suspension requires three conditions under art. 39/82 of the Belgian Aliens Law 15-12-1980 , namely (i) an emergency situation, (ii) a risk of serious prejudice that is difficult to remedy, and (iii) serious grounds justifying the annulment of the decision challenged.
The CALL ruled that these three conditions were met in the case at hand given the medical condition of the applicant (epilepsy) and the terrible general conditions of living in the West Bank. These two elements (i) justified an urgent decision, (ii) suggested that a risk of serious prejudice that is difficult to remedy would exist if the Minister’s decision was enforced, and (iii) proved that serious grounds for annulment existed since denying a visa to the applicant was likely to constitute a breach of art. 3 of the ECHR (prohibition of inhuman or degrading treatment).
Hence, the CALL suspended the Minister’s decision and ordered him to make a new decision, granting a three-month visa to the applicant, within five days.
Outcome:
Application granted
Observations/comments:
This case summary was done by Linklaters LLP.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Belgium - Aliens Law of 15 December 1980 |
| Arts 9 |
| 10 |
| 39/68 |
| 39/82 |
| 39/84 |
Cited Cases:
| Cited Cases |
| ECtHR - Conka v Belgium (Application no. 51564/99) |
| ECtHR - Y. v. Russia, Application No. 20113/07 |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| Belgium - Conseil d’Etat (Council of State), 6 July 2005, No. 147.344 |
| ECtHR, 24 February 2009, L’Erablière A.S.B.L. v Belgium |
| ECtHR - N v Finland, Application no. 38885/02 |
| ECtHR - Fatgan Katani and others v Germany, Application no. 67679/01 |