Belgium - Council for Alien Law Litigation, X v. Commissioner General for Refugees and Stateless Persons, No. 258 932, 02/08/2021

Facts:

The applicant applied for international protection in Belgium. The application was rejected because her credibility was questioned and the facts she alleged could not be established. She did not appeal against the decision.

Years later, she made a subsequent application, in which she added a psychological certificate and medical report. She claimed a risk of ill-treatment upon return due to her AIDS diagnosis and stated that she would be driven to commit suicide. Additionally, she feared that she would end up in the street because she has no family there and that she would not receive the medical treatment she receives in Belgium. The application was declared inadmissible because no new elements or facts appeared that could significantly increase the likelihood to be granted international protection. Moreover, the authorities decided that the arguments based on her medical and psychological treatment are unrelated to an application for international protection and are better fit for an application for medical-related regularisation.

Moreover, the authorities seriously doubted the probative force of the psychological certificate because the essential elements were contradictory to those added to her first application. The authorities concluded the same regarding the medical report, stating that it cannot be recognised as having sufficient probative force to establish sexual abuse and other ill-treatment.

On the fear that she would be ill-treated because of her AIDS diagnosis, the authorities decided that she could not provide concrete, precise and personal elements to establish that fear.

The applicant appealed against the decision of non-admissibility.

Decision & reasoning:

The Court examined different documents to establish the vulnerability of the applicant which arose from her AIDS diagnosis, her family situation (orphan), and those related her arrival in Belgium as an unaccompanied minor, as well as indications of harm related to sexual assault and serious psychological problems. The Council noted that these elements are not contested in the decision and considered them sufficiently established.

Regarding the applicant’s fear of stigmatisation, discrimination and marginalisation in Ivory Coast due to her HIV status, the Council considered information on the country of origin provided by the applicant, and decided that these elements are likely to reach the threshold of seriousness required to constitute persecution. However, the Council also needed individual elements to demonstrate that she has a well-founded fear of being persecuted. While the first-instance authority found that there was a lack of concrete, precise and personal elements, the Council decided that the applicant was interviewed in a laconic and  superficial way.  It stated that the ill-treatment during her childhood, in particular the sexual abuse by her uncle leading to her pregnancy at 13 years old, her being an orphan, being chased by her family on account of the teenage pregnancy, the psychological and physical stigma because of these traumas and her HIV-diagnosis would expose her to discrimination, stigmatisation and violence in case of return. Taken together these elements meet the required seriousness for establishing persecution on an individual basis.

Based on an analysis on the situation of AIDS patients in the Ivory Coast, the Council found that the applicant cannot seek adequate protection by the local government. Regarding the necessary grounds for persecution, the Council considered HIV/AIDS patients in Ivory Coast as a social group and decided that the applicant belongs to the latter.

Outcome:

Appeal granted

Observations/comments:

This summary was written by Frances Vervaet, student at the Human Rights and Migration Law Clinic at the University of Gent.