Belgium: Council for Alien Law Litigation, 31 March 2020, n° 234 709
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Terrorism
Description
Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature and context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act. |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
Headnote:
Well-grounded information is of central importance to any decision to exclude a person convicted for criminal matters from international protection in accordance with Article 1 F of the 1951 Refugee Convention.
Facts:
The applicant is a Turkish national, of Kurdish origin, considered as a PKK activist. After he fled Turkey, he has been involved in PKK-related activism around Europe.
In July 1995, the applicant was arrested and convicted for participating in a formed group or an alliance established with the aim of preparing the terrorist acts mentioned in Article 421-1 of the French Criminal Code. He was sentenced to 3 years’ imprisonment.
In 2007, he filed a second asylum application in Belgium, which is the subject of this case. The Commissioner General for Refugees and Stateless Persons (CGRS) issued a negative decision on his application for international and subsidiary protections based on the exclusion clause of Article 1F (b) of the 1951 Refugee Convention , transposed in Article 55/2 and 55/4of the 15 December 1980 Law (Belgium), claiming that its former conviction of a ‘serious non-political crime ’ was of enough ‘serious reasons’ to deny him international protection.
The applicant appealed this decision to the CALL.
Decision & reasoning:
The Council started by assessing the legal reasoning of the CGRS based on the exclusion criteria.
The Council recalled that regarding the exclusion criteria, the burden of proof is on the defendant, the CGRS. Therefore, the CGRS had to justify that the elements of the case reached the threshold of sufficient proof to establish that there are ‘serious reasons to believe’ that he had committed a criminal offence as defined under Article 1 F of the Refugee Convention and Article 55/4 of the 15 December 1980 law.
Moreover, the CALL concluded that the CGRS interpreted the exclusion criteria too restrictively due to the lack of proof in the judicial documents issued by the French authorities and on the concrete acts charged against the applicant. As pointed out by the CALL, and in accordance to the UNHCR Guidelines on International Protection No. 5, it is not sufficient that the applicant has been convicted for a criminal offence. There is an obligation from the authorities to submit ‘clear and credible evidence, an obligation that has not been fulfilled in this case.
Consequently, there were no serious reasons to believe that the applicant was guilty of a ‘non-political crime’ or a ‘criminal offence’ that could lead to the exclusion from international protection. There were sufficient reasons to believe that the applicant has well-founded fear of persecution if returning to his country of origin, due to his political activities.
The applicant was granted refugee status.
Outcome:
Appeal granted.
Observations/comments:
The summary was written by Clementine Le Roy, LLM student at Gent University.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 convention relating to the Status of Refugees
Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status fo Refugees - Paragraph 152/153/155
Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees