Belgium – Council for Alien Law Litigation, 18 March 2011, Nr. 58.073
Keywords:
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First country of asylum
Description
"A country can be considered to be a first country of asylum for a particular applicant for asylum if: (a) he/she has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection; or (b) he/she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement; provided that he/she will be re-admitted to that country." Member States may consider an application for asylum as inadmissible if a country which is not a Member State is considered as a first country of asylum for the applicant. |
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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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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:
Facts:
Decision & reasoning:
The ruling of the CALL is interesting nonetheless because the Council, in a chamber of three judges, elaborated on the applicable principles in cases where a person that has already been granted refugee status in another country makes a new application for asylum.
The CALL noted that the fact that an asylum seeker has been recognised as a refugee in another State on the basis of the 1951 Refugee Convention, has repercussions for Belgium, because such recognition creates obligations for Belgium under Art 33 of the 1951 Refugee Convention. According to the CALL recognition as a refugee in another State also implies that the fear of persecution vis-à-vis the country of nationality of the applicant has already been examined, and that such recognition remains valid until proven that it was obtained in a fraudulent manner or that the asylum seeker no longer enjoys refugee status. Consequently, in principle such asylum seekers have no direct interest in having the merits of their applications for asylum examined, as refugee status has already been granted. (Such asylum seekers could have an interest in obtaining a residence permit in Belgium, but that would be via another procedure, foreseen in Art 49, §1, 6° of the Belgian Alien Law).
This being said, the CALL continued, it is possible that the asylum seeker has a fear of persecution in the country where he/she is recognised as a refugee. In such a case the application should be examined by analogy to the situation of the stateless person, meaning that the country where the applicant was granted refugee status should be seen as the country of his/her former habitual residence.
In the case at hand the CALL noted that the applicant had been granted refugee status in Poland. That status was not obtained in a fraudulent manner and the protection offered had not ceased to exist. The applicant therefore had no direct interest in having his application for asylum re-assessed by Belgium vis-à-vis his country of nationality. As far as the assessment of the application vis-à-vis the country of former habitual residence was concerned, the CALL found that the grounds for seeking refugee status were purely speculative. A hypothetical argument could not be considered proof of a fear of persecution or a real risk of serious harm.