Belgium – Council for Alien Law Litigation, 11 August 2010, Nr. 47.186
| Country of Decision: | Belgium |
| Country of applicant: | Afghanistan |
| Court name: | Council for Alien Law Litigation |
| Date of decision: | 11-08-2010 |
| Citation: | Nr. 47.186 |
Keywords:
| Keywords |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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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. |
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Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
Headnote:
The CALL ruled that it is an applicant’s obligation to give as complete a picture as possible of their profile and past, including the countries and places of previous residence, in order to allow an assessment of the need for subsidiary protection. In the case of a stay/residence of many years outside his/her country of origin, it cannot be ruled out that the applicant has citizenship in a third country and that protection in Belgium is not needed.
Facts:
The applicants, who claimed to be of Afghan nationality, appealed a decision of the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) in which their application for refugee and subsidiary protection status was rejected. The first applicant stated that he was born in Afghanistan and had left for Iran at a very young age. In Iran he met the second applicant, whom he had married. Concerning the subsidiary protection application, the CGRS ruled that the declarations of the applicants as regards their residence in Iran and in Syria were not credible. The applicants claimed that they had always illegally resided in those countries, but on the basis of a number of findings, the CGRS believed that this was highly unlikely. The CGRS suspected that the applicants had not disclosed certain residence documents and ruled that it was impossible to assess the need for subsidiary protection, and rejected the application.
Decision & reasoning:
The UNHCR representative in Belgium submitted an advice in this case on the legal relevance of residence in a third country in the assessment of asylum applications. On the basis of an analysis of the Qualification Directive and the Asylum Procedures Directive UNHCR concluded that the CGRS had violated both the procedure and the substantive criteria of the issue of the first country of asylum and/or third safe country, as laid down in the directives. UNHCR argued that, in the decision under appeal, the CGRS had seized on the possible existence of a first country of asylum or a third safe country in order not to rule on the possible danger in the country of origin. The potential availability of protection elsewhere was de facto being used as an obstacle to admissibility.
The CALL did not agree with these lines of argument. It firstly reiterated the meaning of “country of origin”: “the country or countries of nationality or, for stateless persons, of former habitual residence” (Art 2(k) of the Qualification Directive). The need for protection should be assessed against those countries. The CALL continued its reasoning and considered the problem of proving the nationality of the applicants and on the distribution of the burden of proof. Applying the principles to the case at hand, the CALL ruled that – contrary to what UNHCR had argued – the CGRS had not rejected the application because Iran or Syria could be considered as a first country of asylum or a safe third country, but because it had been impossible for the CGRS to assess the applicants’ need for protection and this was entirely due to the fact that they had not given a clear picture of their past, their profile and circumstances of life and their possible status elsewhere. The CALL referred to the case law of the Council of State, stating that the applicant “can not limit him/herself to a reference of the general situation in the country of origin but should make a plausible link with his/her person, even if no proof of an individual threat is required.” As a result of their incomplete statements regarding their residence in Iran and Syria and their possible status in those countries, the applicants rendered the assessment of such a link, and thus of the need for protection, impossible. The CALL also considered that “in case of a year long residence abroad, it cannot be ruled out that the applicant has citizenship of that third country, taking away the need for protection in Belgium.” In this context the CALL also referred to Art 4 of the Qualification Directive, in which it is stated that it can be expected of an applicant that they submit all elements needed to substantiate the application, and also include documents regarding nationality, country and place of previous residence.
Outcome:
Refugee status and subsidiary protection status were denied.