Belgium – Council for Alien Law Litigation, 22 July 2010, Nr. 46.578
Keywords:
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Revocation of protection status
Description
In the EU context, the decision by a competent authority to revoke, end or refuse to renew the protection status of a person including inter alia: in relation to refugee status cessation in accordance with the Geneva Convention; misrepresentation or omission of facts, including the use of false documents, which were decisive for the granting of refugee status; or if they have been convicted by a final judgement of a particularly serious crime, which constitutes a danger to the community of a Member State; in relation to subsidiary protection status cessation in accordance with QD Art. 16, exclusion per Art.17 or on any of the grounds set out in Art. 19 |
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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that 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, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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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. |
Headnote:
The CALL ruled that the Qualification Directive, with reference to the grounds for revocation, clearly shows a difference between the various types of protection and that there is no indication that the Belgian legislator wished to deviate from this. Subsidiary protection can be revoked on the basis of a “serious crime” committed after protection was granted.
Facts:
The applicant, an Iraqi national, was granted subsidiary protection in 2008. In 2009 a Belgian court convicted him to 30 months imprisonment for heroin trafficking. In 2010 the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) revoked his subsidiary protection status on that ground. The applicant lodged an appeal against the revocation decision.
Decision & reasoning:
At the centre of the debate before the CALL was the question of whether subsidiary protection status can be revoked on the basis of a “serious crime” committed after status was granted, or if revocation is only possible on the basis of a serious crime committed before subsidiary protection was granted (but unknown at the time of the decision to grant status). The Belgian law, i.e. Art 57/6 of the Alien Law, which is a transposition of Art 19 of the Qualification Directive, appeared ambiguous.
The applicant claimed that the wording of Art 57/6 of the Alien Law was more favourable than the Qualification Directive and implied that subsidiary protection status could only be revoked were it to transpire that the applicant should have been excluded from the status in the first place (on the basis of facts prior to granting status); after all, member states are allowed to adopt a more favourable rule than the directive indicates and this was, according to the applicant, also the intention of the Belgian legislator. The Belgian UNHCR representative supported this interpretation in an advice submitted to the CALL.
However, the CALL followed the position of the CGRS and ruled, on the basis of Art 2(e), 17 and 19 of the Qualification Directive and a reading of the preparatory works of the Belgian legislator, that the provisions of Art 17(1) and (2) are imperative, meaning that more favourable rules cannot be accepted. The CALL therefore concluded that in the case of an application of Art 17(1) and (2) and Art 19(3)(a) and (b) no more favourable provisions could be found in the transposition into Belgian law and that this was also not the intention of the Belgian legislator. Concerning the exclusion of subsidiary protection status on the grounds of a serious crime, the CALL further found that the Qualification Directive gave no territorial or temporal indication regarding the crime. It concluded that the directive clearly showed that, with regard to revocation grounds, there is a difference between the various types of protection and that there was no indication that the Belgian legislator wished to implement this differently. The CGRS was therefore able to revoke the subsidiary protection status on the grounds of a serious crime committed after the granting of that status.
However, the CALL also found that when the CGRS makes a decision to revoke status it is obliged to also consider whether removal would be in breach of Art 3 of the ECHR (cfr. Art 49/2 (5) Alien Law). In the case at hand this was not done by the CGRS, which meant that the decision of the CGRS was tainted with a “substantial irregularity” that the CALL could not repair. The decision had to be quashed as a result.
Outcome:
The decision of the CGRS was quashed and the case was sent back to the CGRS for a new decision.