Belgium – Council for Alien Law Litigation, 13 May 2011, Nr. 61.439
Keywords:
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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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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
Headnote:
Facts:
The applicant, of Egyptian nationality, arrived at the airport on the 1 February 2011. He did not fulfil the requirements to enter the territory and filed an asylum application that day. On 17 February 2011 the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) refused to grant refugee and subsidiary protection status. A first attempt of removal failed. On the 05 May 2011 the applicant filed a second asylum application and on the 10 May 2011 the Immigration Department refused to consider the application. In the meantime the Immigration Department also decided ‘to refuse the applicant entry on the territory with refoulement’, and detained him at the border. On 12 May 2011 the applicant lodged an appeal with the CALL, in which – in a procedure of extremely urgent necessity (please see country overview) – he asked for the suspension of the execution of the Immigration Department’s decision.
Decision & reasoning:
In his appeal the applicant claimed that the Immigration Department had violated Art 51/8 of the Belgian Aliens Law. He claimed that the psychological report constituted a new element, as it could not be excluded that the reasons underpinning the first decision of the CGRS (such as contradictions and vagueness) were the consequence of his psychological condition. The applicant asserted that the CGRS was required to re-examine his application in light of his psychological condition and carry out an interview according to the procedure as described in §§ 208 to 211 of the UNHCR Handbook regarding the interviewing of asylum seekers with psychological problems. The “new element” thus had an important implication on the procedural character of the asylum application. It was not up to the Immigration Department to determine the relevance of the exhibit on behalf of the CGRS’.
The CALL firstly examined the admissibility of the claim. In accordance with the interpretation that the Constitutional Court has given to Art 51/8 of the Belgian Aliens Law in its decisions 61/94 and 83/94 (see summary elsewhere in this database), a claim for suspension of the Immigration Department’s decision is possible when the applicant alleges that the authority unjustly disregarded the “new elements” that were submitted, which was the case here. The CALL agreed with the applicant’s line of argument. From the produced exhibit it transpired that the applicant had psychological problems that seriously affected his intellectual capacities. From the file it further appeared that this psychological condition had been signalled several times to the Immigration Department and that the Immigration Department had never contested it. And while it appeared that the CGRS had been warned about the applicant’s psychological problems prior to the first interview, it did not appear prima facie that a special procedure had been followed during that first interview, in conformity with §§ 208 to 211 of the UNHCR handbook; nor had reasons been given why this was not done. Considering these aspects, the CALL ruled that the applicant’s argument could (prima facie) be agreed with. The claim for suspension of the Immigration Department’s decision was therefore considered admissible.
In its decision the CALL further examined the three cumulative conditions for a procedure of “extremely urgent necessity”: extremely urgent character, seriousness of the arguments, and a disadvantage that would be hard to repair. The CALL found that these conditions were fulfilled.
Outcome:
The CALL ordered, , the suspension of the Immigration Department’s decision.