Belgium - Constitutional Court, 16 January 2014, Nr 1/2014

Facts:

Various NGOs applied to the Constitutional Court for the Law of 15 March 2012 to be repealed. That Law provided that asylum seekers from safe countries of origin, unlike other asylum seekers, could not bring a full-remedy action against a decision to reject their asylum application but could only bring an action for annulment. Unlike the full-remedy action, an action for annulment did not have automatic suspensive effect and restricted the monitoring powers devolved to the Council for Alien Law Litigation (the CALL).

Decision & reasoning:

The Applicant NGOs sought a repeal of the Law of 15 March 2012, under which only an action for annulment could be brought before the CALL to challenge a decision not to take into consideration an asylum application made by a national of a safe country of origin. They claimed there was a breach of the principle of equality and non-discrimination enshrined in Articles 10 and 11 of the Belgian Constitution, read in conjunction with Articles 3 and 13 of the European Convention on Human Rights, Article 47 of the Charter of Fundamental Rights of the European Union and Article 39 of Council Directive 2005/85/EC.

The Court found firstly that an action for annulment before the CALL did not have the effect of suspending the decision to reject the asylum application. In addition, when it examined the legality of that decision, the CALL was limited to examining the facts of which the authorities were aware at the time of making the decision.

For this reason, the Court found that an action for annulment was not an effective remedy within the meaning of Article 13 of the European Convention on Human Rights.

Secondly, the Court reiterated that, when declaring a breach of Article 13 of the European Convention on Human Rights, the European Court of Human Rights took into consideration all of the remedies available to applicants. Apart from an action for annulment against the decision rejecting their asylum application, claimants were also able to apply for an emergency injunction against the deportation order accompanying the rejection.  

An emergency injunction application must be made within five days (of which at least three must be working days) of notification of the deportation order. This five-day time limit was extended by case-law of the CALL, which said that any emergency injunction application made within the time limit for an application for an action for annulment, that is, thirty days, suspended the deportation order.

However, the Court found that the extension to the time limit effected by the CALL’s case-law did not amount to a ‘guarantee’, as required by the European Court of Human Rights in the Conka case. In fact, without a change to the law, the authorities were likely to continue to deport applicants who applied for an emergency injunction outside the legal five-day time limit.

Moreover, an application for an emergency injunction only led to a suspension of the deportation order by the CALL if the Applicant could demonstrate the extreme urgency of his/her situation, give a serious ground for annulment and prove a danger of serious harm that would be difficult to compensate. When assessing the seriousness of the ground for annulment relied upon, the CALL was not compelled to take into consideration facts subsequent to the administrative decision. Even if CALL case-law took into consideration new facts when assessing the risk of breach of Article 3 of the European Convention on Human Rights in the event of a return, this practice did not amount to a guarantee.

For this reason, an emergency injunction was not an effective remedy within the meaning of Article 13 of the European Convention on Human Rights.

Thirdly, the Court considered whether the difference in the treatment of asylum seekers according to whether or not they came from a safe country of origin, since only those who did not could rely on an effective remedy, constituted discrimination as prohibited by Articles 10 and 11 of the Constitution. In order for a difference in treatment not to constitute discrimination as prohibited by the Constitution, it needs to be based on a criterion that is (1) objective, (2) relevant and (3) in proportion to the intended objective.

(1) The Court held first that the difference in treatment was based on an objective criterion, namely the nationality of the asylum seeker. This criterion was accepted by the Court of Justice of the European Union in the case of H.I.D. and B.A. to justify an accelerated procedure for certain asylum applications.

(2) The Court then examined the relevance of the asylum seekers’ nationality as regards their right to an effective remedy. It noted that in H.I.D. and B.A, the Court of Justice of the European Union stated that an accelerated procedure for an asylum claim could not be used to the detriment of the fundamental guarantees instituted by Council Directive 2005/85/EC. Among these fundamental guarantees was the right to an effective remedy, which, according to the CJEU’s judgment in Samba Diouf, should be available to challenge any decision rejecting an asylum claim.

The decision to refuse to take into consideration an asylum application made by a national of a safe country of origin entailed the rejection of his asylum application. It must therefore be capable of challenge via an effective remedy within the meaning of Article 39 of Council Directive 2005/85/EC and Article 47 of the Charter of Fundamental Rights.

The right to an effective remedy recognised by Article 47 of the Charter must be defined “by reference” to that enshrined in the European Convention on Human Rights. It followed “that the remedy should have a suspensive effect and permit a rigorous and complete examination of the Applicants’ case by an authority with the power to award full remedies”(recital B.10.7 of the judgment). Moreover, the right to an effective remedy enshrined in Article 39 of Council Directive 2005/85/EC assumed not only an examination of the risk of a breach of Article 3 of the European Convention on Human Rights but also of a breach of the provisions concerning recognition of refugee status or the grant of subsidiary protection. This was not the case with either an action for annulment or an application for an emergency injunction.

For this reason, the applicants’ nationality was not a relevant criterion for differentiation. It did not justify suppressing the right to an effective remedy for applicants from safe countries of origin and constituted a breach of the prohibition on discrimination enshrined in Articles 10 and 11 of the Constitution.

(3) In any event, the Court specified that suppressing the right to an effective remedy was not in proportion to the wish for speed cited by the legislature. Other measures, such as a reduction of the time limit for applying for a full-remedy action, were possible.

In conclusion, the Constitutional Court repealed the Law of 15 March 2012 under which only an action for annulment could be used to challenge a decision to refuse to take into consideration an asylum claim made by a national of a safe country of origin.

Outcome:

Repeal of the Law of 15 March 2012 limiting the remedy for a decision rejecting an asylum application before the CALL to an annulment action when the applicant was from a safe country of origin.

Observations/comments: