Belgium – Council for Alien Law Litigation, 18 March 2010, Nr. 40.366
Belgium – Council for Alien Law Litigation, 18 March 2010, Nr. 40.366
Keywords:
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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examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned.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:
This case concerned subsequent applications. The CALL ruled that the Immigration Department is not authorised to assess elements put forward to a thorough examination on their merits, but instead to consider whether they have probative value prima facie in order to check whether there are serious indications of a well-founded fear of persecution or a real risk of serious harm.
Documents that only serve to prove facts and situations that have been invoked in earlier procedures and/or to refute the reasons for rejection in earlier decisions, are not new elements within the meaning of Art 51/8 of the Belgian Aliens Law (please see comments section below).
Documents that only serve to prove facts and situations that have been invoked in earlier procedures and/or to refute the reasons for rejection in earlier decisions, are not new elements within the meaning of Art 51/8 of the Belgian Aliens Law (please see comments section below).
Facts:
The applicant, of Cameroonian nationality, lodged an appeal against the Immigration Department’s decision, of the 12 January 2010, to refuse to take into consideration his third asylum application. He requested both the suspension of the execution of the decision and its annulment. His first asylum application was fully determined on the 27October 2009 and his second on the 5January 2010.
Decision & reasoning:
In support of his third application the applicant had submitted a number of new documents: two letters in which he and his mother were requested to appear at a police station on 29 August 2009, a medical certificate of his mother, a hand-written letter from his stepfather, and the envelope in which these documents had been sent to Belgium. However, the Immigration Department ruled that these documents did not contain new elements within the meaning of Art 51/8 Belgian Aliens Law. Regarding the convocation letters, the Immigration Department found that they could have been submitted in the course of the first asylum procedure; regarding the medical certificate the Immigration Department found that “it is what it is, a mere certificate without indication of a causal link”; regarding the letter from the stepfather the Immigration Department ruled that it was not from an objective source and could have been written upon request “anywhere, anytime, by anyone”; and regarding the envelope the Immigration Department found that “it is just what it is, an envelope without indication of what it would have contained”.
Before the CALL the applicant claimed that Art 51/8 of the Belgian Aliens Law had been violated and argued that this article limits the competence of the Immigration Department to check the “novelty” of the produced elements and that it is not up to the Immigration Department to examine their credibility. This is precisely what the Immigration Department had done in the case at hand. The applicant also asserted that he had only received the original documents on 21 December 2009 and that it had therefore been impossible to submit them earlier.
The CALL firstly confirmed that the competence of the Immigration Department in the context of Art 51/8 of the Belgian Aliens Law is limited to determining whether new elements are being submitted with the asylum application or not and that in both these cases that is where its competence ends:
(1) if it is decided that the applicant has effectively submitted new elements compared to the earlier application, then the file will be transferred to the Office of the Commissioner General for Refugees and Stateless Persons (CGRS), who will examine the new application on the merits;
(2) if it is decided that no new elements were submitted, then the new application will not be taken into consideration.
The CALL then analysed the newly produced documents. Regarding the convocation letters the CALL found that the applicant could have perhaps not submitted them in his first procedure, but that he should have had knowledge of those letters and could have at least mentioned them in that procedure (which he had not done). The CALL added that “the mere fact that the applicant was unable to submit or mention these elements in his first application is in itself insufficient to demonstrate that they are new elements within the meaning of Art 51/8 of the Belgian Aliens Law.” Given the fact that the convocation letters are only meant to prove facts or situations that have been advanced in the first asylum procedure and/or to refute the reasons for rejection in that decision, the CALL found that the Immigration Department could rightfully find that these letters did not contain new elements within the meaning of Art 51/8 of the Belgian Aliens Law. Also regarding the other documents the CALL ruled that the reasons that the Immigration Department had given were not manifestly unreasonable.
Before the CALL the applicant claimed that Art 51/8 of the Belgian Aliens Law had been violated and argued that this article limits the competence of the Immigration Department to check the “novelty” of the produced elements and that it is not up to the Immigration Department to examine their credibility. This is precisely what the Immigration Department had done in the case at hand. The applicant also asserted that he had only received the original documents on 21 December 2009 and that it had therefore been impossible to submit them earlier.
The CALL firstly confirmed that the competence of the Immigration Department in the context of Art 51/8 of the Belgian Aliens Law is limited to determining whether new elements are being submitted with the asylum application or not and that in both these cases that is where its competence ends:
(1) if it is decided that the applicant has effectively submitted new elements compared to the earlier application, then the file will be transferred to the Office of the Commissioner General for Refugees and Stateless Persons (CGRS), who will examine the new application on the merits;
(2) if it is decided that no new elements were submitted, then the new application will not be taken into consideration.
The CALL further explained that it does not suffice to bring forward elements that had not been submitted earlier, but that the law requires that elements are brought forward regarding facts or situations that occurred after the last phase in the procedure in which the applicant could have submitted them. Moreover, these elements should also contain serious indications of a well-founded fear of persecution or a real risk of serious harm. While the Immigration Department is not authorised to subject the produced elements to a thorough examination – an examination on the merits – Art 51/8 of the Aliens Law does not exclude that the probative force of the produced elements is assessed prima facie in order to check whether there are “serious indications”.
The CALL then analysed the newly produced documents. Regarding the convocation letters the CALL found that the applicant could have perhaps not submitted them in his first procedure, but that he should have had knowledge of those letters and could have at least mentioned them in that procedure (which he had not done). The CALL added that “the mere fact that the applicant was unable to submit or mention these elements in his first application is in itself insufficient to demonstrate that they are new elements within the meaning of Art 51/8 of the Belgian Aliens Law.” Given the fact that the convocation letters are only meant to prove facts or situations that have been advanced in the first asylum procedure and/or to refute the reasons for rejection in that decision, the CALL found that the Immigration Department could rightfully find that these letters did not contain new elements within the meaning of Art 51/8 of the Belgian Aliens Law. Also regarding the other documents the CALL ruled that the reasons that the Immigration Department had given were not manifestly unreasonable.
Outcome:
The appeal was rejected.
Observations/comments:
The legal provision, Art 51/8 of the Aliens Law, states:
“The Minister or his/her mandate holder can decide not to take into consideration an asylum application when the foreign national has previously filed the same application (…), and he/she does not present new elements that there exist, in his/her respect, serious indications of a well-founded fear of persecution (…), or serious indications of a real risk of serious harm (…). The new elements should relate to facts or situations that have occurred after the last phase in the procedure in which the applicant would have been able to present them.”