Belgium – Council of State, 23 June 2016, Nr. 235.11

Facts:

Directive 2005/85/CE of the Council of 1st December 2005 (the Asylum Procedures Directive). The directive was transposed into Belgian law by a law of 19th January 2012 modifying the law of 15th December 1980. A royal decree of 11th May 2015 published the list of the countries considered "safe". The claimants appeal to quash the list to the extent that it designated the countries on the list as safe, since the countries do not present the character of security required by the Asylum Procedures Directive and Article 57/6/1 of the 15 December 1980.

Decision & reasoning:

The Council of State first started that to support a claim to quash before the Council, the only means is to argue that the transposition was done incorrectly. Since the complainants had not presented arguments on the manner by which the directive was transposed the claim in this respect is inadmissible.

According to Article 57/6/1 (2), of the law of 15th December 1980 :

 “A country is considered a country of safe origin when, on the base of the legal situation, the application of law in the context of a democratic regime and general political circumstances, it can be demonstrated that, in a general and sustainable way, there is no recourse to persecution in the sense of the International Convention concerning the status of refugees, signed in Geneva on 28 July 1951, such as is determined by article 48/3, or serious reasons to believe that the asylum seeker runs a real risk of suffering a serious attack such as determined by article 48/4.”  

The Council notes that the criteria set out by article 57/6/1 is not exhaustive as is shown by the use of terms such as “amongst others” by this statute. The number of people coming from a determined country to which the status of refugee has been granted by the General Commissioner is a pertinent criterion about which one should have regard.

Quoting from a previous judgment on the prior inclusion of Albania on the list of safe countries of origin the Council notes that the level of recognition of asylum seekers coming from Albania, which was 6.8 % in 2011, 11.4 % in 2012, and 13.7 % in 2013, and 12.9% in 2014 can be described as high.

The Council notes that contrary to that which the other side alleges, the circumstances that numerous decisions to grant refugee status were motivated by the issue of vendettas does not at all relativise the importance of considering the numbers of those being recognised as refugees and those leaving, which is the central argument presented by the claimants. The fact that the people having obtained protection may or may not be linked to one-another does not in any way affect the pertinence of the argument. Moreover, the opinion of the General Commissioner concludes that in the matter of vendettas, “the problem has still not disappeared” which implies that this reason can still today justify the grant of a status of international protection. 

The first limb of the claim is therefore founded in such that it rebukes the other side of having not recognised the notion of a country of safe origin as it is defined by article 57/6/1 of the law of 15th December 1980 by including Albania on the list established by the Royal Decree of 11th May 2015.

The complainants also appealed against the methodology used by the Belgian government. The minister responsible for migration policy requested an opinion from the General Commissioner on Refugees and Stateless Persons to support which countries should be featured on the list of countries of safe origin to give him an opinion from an independent administrative authority.

The Council noted that the sole fact that numerous asylum seekers come from a country on the list of countries of safe origin is not in itself inconsistent with the inclusion of that country on the list. To hold otherwise would be to erroneously hold that every asylum seeker is a refugee.

With regard to the content of the Commissioner’s report the Council noted:

An examination of the report shows that each opinion takes into account the policy implemented by other European countries … It also shows that each of the opinions given by the General Commissioner relies on sources of information duly referenced in an inventory and an annex. These inventories show that the General Commissioner has consulted [many] information sources – ensuring to update those [sources of information] since the first list of countries of safe origin – amongst those the whole of those specifically envisaged by the law, being in its own terms “all the available information” concerning the different countries. These sources are varied seeing that as well as international organisations (UN, OSCE, European Union, for example), governmental organisations (the “US Department of State”), the offices of national  human rights mediators (“Immigration and Refugee Board of Canada”, for example), or non-governmental organisations (Amnesty International, Human Rights Watch, for example) appearing but also specialised organizations (Reporters Without Borders, Gay Straight Alliance, Unicef, for example) also appear.

The opinions contained in the report appear equally nuanced. In effect, for each of the countries on the criticised list … the General Commissioner examined all the questions that should be taken into account from the criteria fixed by the law (knowledge of the legal situation, the application of law, the general political situation… together with how possible it is there to obtain protection from acts of persecution or bad treatment) without hiding the specific problems evidenced by the sources of information consulted – particularly the situation of women and sexual minorities – which this opinion synthesises.

The claim is not founded in that it claims a lack of meticulousness in the elaboration of the list. 

Outcome:

Application granted.

Observations/comments:

As noted in the case, this judgment is not the first to exclude Albania from the list of safe countries:

The Royal Decree of the 26th May 2012, published in the Moniteur belge (official publisher of government acts) on the 1st June 1012, designated as safe countries, in the sense of article 57/6/1, paragraph 4, of the before-mentioned law of the 15th December 1980, the following countries: Albania, Bosnia-Herzegovina, India, Kosovo, FYROM (Former Yugoslav Republic of Macedonia, Montegro and Serbia.

By judgment no. 228.901 of the 23rd October 2014, the Conseil d’État quashed this decree to the extent that it included Albania in the list of countries of safe origin.

On the 22nd March 2013, the General Commissioner on Refugees and Stateless Persons gave a new opinion on the seven countries of the list of the Royal Decree of the 26th May 2012.

Following this opinion, Albania, Bosnia-Herzegovina, India, Kosovo, FYROM (Former Yugoslav Republic of Macedonia, Montegro and Serbia were once again designated as countries of safe origin by a Royal Decree of the 7th May 2013, published in the Moniteur belge in the 15th May 2013.

By judgment no. 228.902 of the 23rd October 2014, the Conseil d’État quashed this decree to the extent that it included Albania in this list of countries of safe origin.

On the 14th February 2014, the General Commissioner on Refugees and Stateless Persons gave a new opinion on the subject of countries of safe origin.

By the Royal Decree of the 24th April 2014, published in the Moniteur belge of the 15 May 2014, the other side adopted an identical list to that which had been decreed in 2012 and 2013.

By judgment no. 231.157 of the 7th May 2015, the Conseil d’État quashed this decree to the extent that it included Albania in the list of countries of safe origin. 

This case summary was written by Patrick Wharton, LPC student at BPP Univeristy.