Belgium – Council for Alien Law Litigation, 12 May 2011, Nr. 61.630

Belgium – Council for Alien Law Litigation, 12 May 2011, Nr. 61.630
Country of Decision: Belgium
Country of applicant: Russia
Court name: Council for Alien Law Litigation
Date of decision: 12-05-2011
Citation: Nr. 61.630
Belgium_024 decision (0.1Mo)

Keywords:

Keywords
First country of asylum
Country of origin

Headnote:

The CALL confirmed that the need for protection should be assessed in relation to the country of nationality (or, for stateless persons, vis-à-vis the country of former habitual residence) and that this is not influenced by the fact that the applicant resided in a “safe third country” or in a “first country of asylum,” or has a “real residence alternative,” these concepts having no grounds in Belgian law. The CALL did however add that if the applicant has refugee or subsidiary protection status in another country, he/she has no direct interest in having that status also recognised in Belgium, except if he/she can demonstrate a fear of persecution or a real risk of serious harm in that other country. 

Facts:

In 2004, the applicant, of Russian nationality and Chechnyan origin, applied for asylum in Poland. In July 2006 he obtained protective status in Poland and was granted “permission for tolerated stay” (“pobyt tolerowany”). In May 2009, his status in Poland was regularised and he received an alien’s passport. In 2007 he applied for asylum in Belgium under a false name, Under the Dublin II Regulation, he was transferred to Poland. In September 2009, he applied for asylum in Belgium for a second time. He claimed his persecutors in Chechnya traced him to Poland and he was in danger.
The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) considered that as the applicant already had a protective status in Poland he was required to prove that the protection offered by Poland had come to an end. This was not proven. Moreover, the applicant had not made a plausible claim that he could not rely on the Polish authorities for protection against his alleged Chechnyan persecutors. Finally, the CGRS found a number of contradictions in the applicant’s statements, casting doubt on his fear of persecution. The applicant filed an appeal against this decision.

Decision & reasoning:

The applicant argued that the CGRS, by finding that he was entitled to residence in Poland, had failed to examine the existence of a well-founded fear of persecution as defined in the 1951 Refugee Convention regarding events which occurred in his country of origin. Although the CGRS did not use the term “first country of asylum” explicitly, the applicant argued that the CGRS had effectively considered Poland as the “first country of asylum” in making its decision, although this concept has no legal basis in Belgian law.
 
The CGRS argued that Poland had examined the applicant’s case and concluded he was not entitled to refugee status, but granted him “permission for tolerated stay.” According to the CGRS this meant that the applicant could no longer invoke a need for protection vis-à-vis his country of origin; the Belgian asylum authorities could not be seen as an appeals body for decisions taken in other EU Member States. Only if the applicant could indisputably demonstrate that the protection he enjoyed in Poland was ineffective, could it be accepted that he had a need for protection in Belgium vis-à-vis his country of origin.
 
The CALL found that the extent of the protection granted in Poland (the “permission for tolerated stay”) was unclear. Parties were not able to clarify whether that protective status corresponded to the subsidiary protection status as provided for in the Qualification Directive. The CALL stated that an interpretation of the concept of “country of origin” should be applied in accordance with Art 2(k) of the Qualification Directive. The need for protection should therefore be assessed vis-à-vis the country of nationality (or, for stateless persons, vis-à-vis the place of former habitual residence). The CALL stated that “this is not affected by the fact that the applicant has resided in a ‘safe third country’ or in a ‘first country of asylum’ or has a ‘real alternative of residence’, these concepts having no basis in internal law”. However, the CALL did add to this finding that “if the applicant is recognised in another country as a refugee, then he/she cannot claim to have a direct interest in having his/her asylum request examined by the Belgian authorities, except if he/she shows a well-founded fear for persecution or a real risk of serious harm in the sense of Art 48/4 of the Belgian Alien Law. If the applicant obtained subsidiary protection status in another country, that applicant cannot claim to have a direct interest to have such status granted in Belgium, unless he/she can show a well-founded fear of persecution or a real risk of serious harm in the sense of Art 48/4 of the Belgian Alien Law.”

In the case at hand, the CALL considered that it was undisputed that the applicant had Russian nationality and was of Chechnyan origin. The fact that he enjoyed a protective status in Poland (of which it was unknown to what extent it corresponded to the subsidiary protection status), could not alter the fact that the need for protection offered under Art 48/3 of the Belgian Alien Law (i.e. refugee status) had to be examined vis-à-vis the country of nationality, i.e. the Russian Federation. This examination had not been carried out and the CALL was – on the basis of the case file – not in a position to decide itself.

Outcome:

The decision of the CGRS was quashed and the case was sent back to the CGRS for a new decision.

Relevant International and European Legislation:

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