Belgium – Council of Alien Law Litigation, X / VIII, 25 August 2016, nr. 173 581
| Country of Decision: | Belgium |
| Country of applicant: | Afghanistan |
| Court name: | The Council of Alien Law Litigation |
| Date of decision: | 25-08-2016 |
Keywords:
| 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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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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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Legal assistance / Legal representation / Legal aid
Description
Legal assistance: "practical help in bringing about desired outcomes within a legal framework. Assistance can take many forms, ranging from the preparation of paperwork, through to the conduct of negotiation and representation in courts and tribunals.” Legal aid: state funded assistance, for those on low incomes, to cover legal fees." |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
Headnote:
The transfer of asylum seekers from Belgium to Austria, under the Dublin Regulation, is contrary to the principle of due diligence, because the government has failed to obtain information on the effects of the moratorium of the processing of asylum applications in Austria.
Facts:
The applicant travelled through Iran and Turkey to Greece, after having stayed a few days in Greece, he travelled to Austria, where he stayed in a reception centre for seven days. The applicant subsequently travelled onwards to Belgium.
The Belgian government has requested the Austrian authorities for a Dublin transfer, under the Dublin Regulation, as the applicant had already introduced an asylum application in Austria. Austria had accepted this request.
The applicant, however, disputes whether this transfer is contrary to the principle of due diligence and article 3 of the ECHR, since Austria has introduced a temporary suspension of the treatment of asylum applications. The applicant argues that there exists at least an uncertainty about the reception conditions and the right to legal assistance due to the moratorium on the processing of asylum applications.
Decision & reasoning:
The Council argues that the presumption, on which the system of the Dublin Regulation is based, in particular, that all the Member States will respect the fundamental rights laid down in the ECHR, is not irrefutable. An asylum applicant may not be transferred to the responsible Member State, within the framework of the (European) Dublin Regulation, when one cannot be unaware of the fact that fundamental shortcomings of the asylum procedure and reception conditions for asylum seekers in that Member State are severe, based on grounds justified by facts to believe that the asylum seeker would face a real risk of inhuman or degrading treatment.
Since the applicant submits that it is highly likely that he will be subjected to treatment contrary to Article 3 ECHR upon return to Austria, the Council should as far as possible conducted an independent and rigorous investigation of any complaint which shows that there are reasons to believe that there is a risk is present. The Council notes that the defendant considers the grievances of the applicant as purely hypothetical, since the applicant had not experienced any problems in Austria.
The Council further concludes that the defendant has failed to gather additional information about the impact of the moratorium on the processing of asylum applications, and specifically the consequences for Dublin returnees in Austria. The Council concludes that the lack of a proper examination of the facts constitutes a violation of the principle of due diligence.
Outcome:
Appeal granted.
Subsequent proceedings:
The Belgian authorities must re-assess the substance of the asylum claim.
Observations/comments:
This judgment points the Belgian government to its obligation to thoroughly investigate whether the responsible Member State, under the Dublin Regulation, will respect the fundamental rights of the asylum-seeker.
Besides this, the Belgian government can no longer send asylum seekers to Austria, under the Dublin Regulation, unless they conduct additional examinations on the moratorium on the processing of asylum applications.
This case summary was written by Birte Schorpion, LLM in immigration law and current intern at UNHCR’s legal protection unit.
The case summary was proof read by Miek Lamaire, MA International Security.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-411-10 and C-493-10, Joined cases of N.S. v United Kingdom and M.E. v Ireland |
| ECtHR - Y. v. Russia, Application No. 20113/07 |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| ECtHR- Vilvarajah and Others v. the United Kingdom, Application Nos. 3163/87 13164/87 13165/87 13447/87 13448/87 |
Other sources:
- European Council on Refugees and Exiles (ECRE), coordinated project Asylum Information Database (Anny Knapp, Asylum Information Database – National Country Report – Austria, up-to-date tot December 2014)
- Amnesty International, Quo vadis Austria? Die Situation in Traiskirchen darf nicht die Zukunft der Flüchtlingsbetreuung in Osterreich werden, 14 August 2015
- AIDA report, Navigating the Maze: structural barriers to accessing protection in Austria, December 2014