Belgium – Council for Alien Law Litigation, 24 November 2010, Nr. 51.569
Keywords:
| Keywords |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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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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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. |
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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:
The CALL ruled that, if the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) rejects an asylum request because “the applicant has a right of residence in a safe third country,” this should not be seen as an application of the concept of “safe third country” as contained in Art 26 and 27 of the Asylum Procedures Directive.
Facts:
The applicant, of Somali nationality, applied for refugee and subsidiary protection status in Belgium. In the course of the examination of his file it transpired that the applicant had already received subsidiary protection status in Italy, a few months earlier. The applicant had a valid residency status in Italy and was in possession of the required documents. The CGRS refused to grant refugee or subsidiary protection status, as the applicant “already has a right of residence in a safe third country”. The applicant filed an appeal against this decision.
Decision & reasoning:
The CALL agreed with the applicant’s argument that the concepts of “safe third country” and “first country of asylum” in Art 26 and 27 of the Asylum Procedures Directive have no direct effect, as they have not been transposed into Belgian law. However, the CALL ruled that in this case the CGRS had not used the concept of “safe third country” in the sense of Art 26 and 27 of the Directive. According to the CALL the CGRS had rightfully considered that the applicant should have made a plausible claim that a return to Italy was impossible because he would not be readmitted or because he had a fear for persecution or ran a risk of serious harm in Italy (which he failed to do). The CALL concluded that the use of the term “safe third country” should be understood in that sense, and not in the sense of the Asylum Procedures Directive.
As it appeared from the applicant’s statement that his travel to Belgium was not inspired by reasons of protection but rather by socio-economic reasons, the CALL ruled that his request for asylum had to be rejected.
Outcome:
Refugee status and subsidiary protection status were denied.