Council of State, 24th June 2020, X and Y v. General Commissioner for refugees and stateless persons, No 247.889
| Country of Decision: | Belgium |
| Country of applicant: | Turkey |
| Court name: | Council of State, Litigation section with Y. Houyet (President of Chamber), N.Van Laer (Counsel of State), L. Donnay (Counsel of State) |
| Date of decision: | 24-06-2020 |
| Citation: | (Belgium) Council of State (11th), 24th June 2020, X and Y v. General Commissioner for refugees and stateless persons, No 247.889 |
Keywords:
| Keywords |
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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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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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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Refugee sur place
Description
In the EU context, a person granted refugee status based on international protection needs which arose sur place, i.e. on account of events which took place since they left their country of origin. In a global context, a person who is not a refugee when they leave their country of origin, but who becomes a refugee, that is, acquires a well-founded fear of persecution, at a later date. Synonym: Objective grounds for seeking asylum occurring after the applicant's departure from his/her country of origin Note: Refugees sur place may owe their fear of persecution to a coup d'état in their home country, or to the introduction or intensification of repressive or persecutory policies after their departure. A claim in this category may also be based on bona fide political activities, undertaken in the country of residence or refuge. |
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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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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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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:
By not considering the argument on the applicants’ political conviction in Belgium and by avoiding answering the argument requesting a report on the Turkish authorities’ influence in Belgium, the Council for Alien Law Litigation failed to give a complete legal reasoning.
Facts:
On 28 April 2017, the applications for international protection of two Turkish nationals of Kurdish ethnicity was rejected by the General Commissioner for Refugees and Stateless Persons (GCRS).
Consequently, the applicants appealed the decision before the Council for Alien Law Litigation (CALL), which rejected the appeal on the 4th of February 2019. The Council for Alien Law Litigation declined.
Therefore, the applicants challenged the judgment of 4th February 2019 before the Council of State (CS).
Decision & reasoning:
The applicants invoked the lack of legal reasoning in the Council for Alien Law Litigation’s decision based on two arguments.
Firstly, the Council for Alien Law Litigation (CALL) considered the applicant’s situation in Turkey but not in Belgium. However, the applicants are activists in the Kurdish political movement both in Turkey and in Belgium. The applicants argue that by analysing their situation only in Turkey and not considering the proofs of their political conviction in Belgium, the CALL did not answer all the arguments brought by them.
Secondly, the Council for Alien Law Litigation (CALL) did not address the argument concerning the omission of the General Commissioner for Refugees and Stateless Persons (GCRS) to assess a report based on the current situation in Turkey and political influences from Turkey on political activists in Belgium. Additionally, they argued that the GCRS only assessed a report in respect of a potential need for a subsidiary protection and not regarding the existence of a well-founded fear that would justify the recognition of refugee status.
According to the Belgian Constitution (art. 149) and the Law of the 15th December 1980 about access to the territory, the stay, the establishment, and the removal of foreigners (art. 39/65), national judges must in their judgements respond to all arguments raised by the parties.
The directive 2011/95/UE (art. 4 (1)) and the Belgium Law of the 15th December 1980 (48/6 (1)), further oblige national authorities to analyse both the applicant’s situation and the general situation in their country to decide upon the risk and their need for international protection. Therefore, the burden of proof is shared between the applicant for international protection and the national administration.
The Council of State (CS) considered that the CALL did not respond to the applicants’ arguments. Indeed, the CS noticed the lack of legal reasoning because when the CALL gave its decision on political convictions of the applicants, it only focused its reasoning on Turkey but not on Belgium, even if the applicants had raised that specific argument.
Besides, the CS noted that the applicants’ argument claiming a report based on the Turkish authorities’ influence on political activists and their control on them in Belgium, was not answer. The CALL did not assess whether this report on the influence and control from the Turkish authorities on political opponents which was not constituted by the GCRS, was necessary.
Finally, because of the lack of legal reasoning from the Council for Alien Law Litigation (CALL), the Council of State (CS) concluded a violation of Constitution (art. 149) and the Law of 15th December 1980 (art. 39/65).
Hence, the Council of State (CS) quashed the Council for Alien Law Litigation’s judgement (CALL) and ordered it to take another judgement, considering the Council od State’s reasoning.
Outcome:
Application granted.
Subsequent proceedings:
The case is sent back to the same jurisdiction, the Council for Alien Law Litigation for a new judgment by another judge.
Observations/comments:
As I have understood this case, it seems that the Council of State considered that when the applicants’ political conviction is assessed for their personal situation by national judge, it should be done regarding their home country. However, it does not seem to be sufficient. The national judge must also measure the impact of the applicants’ political conviction in the country where they apply for an international protection.
Besides, the Council of State emphasize the idea that the Council for Alien Law Litigation must state if a report on the authorities’ influence on the countries where they are located while applying for international protection, is necessary. It seems to be an order for the Council of Alien Law litigation to assess the necessity of a report on the likely influences and controls from the Turkish authorities on their political opponents. So far, we could imagine the likely Council of Alien Law Litigation’s answers divided into two scenarios.
On the one hand, the CALL might answer that this report was not necessary and the GCRS instructed the applicants’ case in depth. Or, on the other hand, the CALL might respond that under those circumstances, there is a necessity to constitute an additional report on influences and controls from the Turkish authorities on their political opponents in Belgium.
In this latest scenario, in our opinion this mean that national administration whenever the GCRS examined an international protection application must constitute an additional report on those likely influences and controls on political opponents.
This case summary has been written by Alexandre Piérard, LLM student at University of Ghent.