Belgium - Council of State, 5 July 2013, No. 224.276

Facts:

The Applicant is an Afghan asylum seeker of Uzbek origin, from the province of Sari Pul, who applied for asylum in Belgium in 2009 as an unaccompanied minor. After the definitive refusal of his application for asylum, he was arrested for the purpose of forced return and applied for asylum a second time. He cited problems his family were having with the Taliban as grounds for his flight. He also said that the worsened security situation caused by the presence of the Taliban and floods in the region made his return impossible.

The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) refused to acknowledge his refugee status because it found his statements about the problems with the Taliban to be implausible. The CGRS did not believe that the security situation in Sari Pul was relevant to the assessment of the application for subsidiary protection because Kabul could be regarded as a reasonably secure internal relocation alternative for the Applicant. According to the CGRS, the Applicant is a grown man with an education and work experience, which, according to the UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-seekers, would negate the need for a traditional protection mechanism.

In his appeal against the decision, the Applicant presented the Council for Alien Law Litigation (CALL) with detailed information from human rights and refugee organisations, to which the European Court of Human Rights (ECHR) also refers, and which shows that the conditions for returnees in Kabul are extremely difficult and that these people often end up subjected to degrading conditions in refugee camps. The Applicant also referred to the interpretation by the UNHCR of the reasonableness of an IPA, namely that those concerned should be able to lead ‘a relatively normal life without facing undue hardship’. The CALL (Judgment No. 87988 of September 21, 2012) determined that the information could not result in a different judgment because the Applicant did not show that his circumstances were different from that of other single men in Kabul, who could find an IPA there, according to the UNHCR. The CALL affirmed the decision of the CGRS.

A so-called appeal in cassation was submitted to the Council of State (RvS) against the judgment of the CALL on the grounds that the CALL failed to fulfil its constitutional obligation to provide reasons and failed to apply the legal conditions needed to justify invoking an IPA. 

Decision & reasoning:

The Council of State referred to Article 48/5, § 3 of the Belgian Aliens Law (transposition of Article 8(2) of the Qualification Directive), which provides that the reasonableness of an IPA must be determined based on the general conditions in the country of origin and the personal circumstances of the person concerned. The Applicant submitted general information to the CALL on the circumstances of returned refugees seeking asylum in Kabul – which shows that they often end up in refugee camps, in degrading conditions – as a criticism of the assessment by the CGRS. This information should therefore have been examined by the CALL.

If the CALL rejected this criticism, it ought to have clearly stated its reasons for doing so in its judgement. The general assertion that the information is not sufficient to alter the decision of the CGRS is insufficient because it is not apparent that the profile of the Applicant as a returning refugee was taken into consideration. The CALL therefore violated the constitutional obligation that all judicial bodies are subject to to state grounds (Article 149 of the Belgian Constitution).

Since the CGRS and the CALL only invoked the argument of Kabul as an IPA in order to disallow subsidiary protection, and not in order to refuse to recognise the Applicant’s status as a refugee, only that part of the judgment was set aside.

Outcome:

The judgment of the CALL was set aside with regard to the refusal of subsidiary protection status, and the case was referred back to a different chamber of the CALL.

Subsequent proceedings:

The case is still pending at the CALL.

Observations/comments:

In this case, the Council of State obliges asylum authorities (in the first instance, the CGRS) to take account of the conditions of returnees in their country of origin when assessing the existence of a reasonable IPA.

The Council of State did not explicitly rule in this judgment on whether or not there is a shared burden of proof between the Applicant and the CGRS, particularly with regard to the general circumstances that should be taken into consideration when assessing the reasonableness of an IPA. In this case, the information was submitted by the Applicant himself. Although the shared burden of proof and duty of active cooperation on the part of the asylum authorities in Belgium is a controversial point (Belgium was condemned by the ECtHR in the Singh judgement, but surprisingly did not transpose the second sentence of Article 4(1) of the Qualification Directive 2011/95 into national legislation), it is still widely accepted that general country information (including that relating to the circumstances of returned asylum seekers) is part of the obligation to investigate, and therefore burden of proof, of the authorities.

It therefore would appear that before designating Kabul as an internal protection alternative (also in the case of independent, educated adult men with work experience), the CGRS will have to take the circumstances of returnees into consideration. Given that this situation is described as degrading in reports by human rights organisations, it seems clear that Kabul will no longer serve as an IPA – unless the CGRS would be able to explain why an individual applicant in question would certainly not end up in such a situation.

Other sources:

UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December 2010 (replaced by new Guidelines from August 2013)