Case summaries
Refugee status was revoked when an individual applied for and received a new passport issued by his/her country of origin.
It is in principle possible for men to be persecuted on account of their gender. However, classifying the punishment for extramarital sex in Afghanistan as persecution on account of both membership of the group of men and the group of women would cover the entire society and renders the definition meaningless. Therefore, the applicant was not granted refugee status but his deportation was prohibited under Section 60 (2) of the Residence Act / Art 15 (b) of the Qualification Directive.
The Council for Alien Law Litigation (CALL) held that Art 48/5, §3 of the Belgian Aliens Law, which refers to the principles of internal protection alternative and protection within a country of origin, is in principle applicable in cases where the threat comes from a non-state agent. In a case where the threat of persecution comes from a state agent, the decision-maker should explain why it believes that this provision is applicable nonetheless.
Following the decision of Abdulla et al. (C-175/08) of the European Court of Justice, revocation of refugee status presupposes that a significant and non-temporary change of circumstances has taken place. This is the case if the factors which formed the basis of the recognition of refugee status, may be regarded as having been permanently eradicated. The relevant standard of probability for the determination of the likelihood of future persecution is the same both for the recognition and the revocation of refugee status, i.e. a change in circumstances has to be assessed on the basis of whether there is still a "considerable" probability of persecution (change from former case law).
The Constitutional Court did not unreservedly uphold the judgment of the Supreme Court. The Appellant in the case sought protection of his rights under Article 3 of the ECHR (and fundamental rights under Article 16(2) of the Constitution), which, in comparison with the other human rights and fundamental freedoms defined in the Convention, is characterised by an absolute and collective guarantee. In view of this, the Constitutional Court found that the standards of protection arising from Article 3 of the Convention (and Article 16(2) of the Constitution) should have been applied in the proceedings, even if such an obligation is not explicitly set out in the legislation, because these secure a greater range of constitutional rights and freedoms within the meaning of Article 154c(1) of the Constitution, and therefore take precedence over the law.
When protection grounds are invoked only after a decision on removal becomes final, these shall be deemed admissible. On any appeal, the Migration Court or the Migration Court of Appeal cannot take into account such factors that could be the basis for granting a residence permit unless (for example, family links or humanitarian reasons) they are based on protection grounds.
A stateless Kurd from Syria was not recognised as a refugee. The court held:
- The denial of re-entry of stateless Kurds is not to be considered political persecution because a general institutional practice cannot be detected which is aimed against ethnic Kurds in a manner that is relevant to asylum grounds (Art 10 of the Qualification Directive).
- Whether the legal practice of Syrian legislation on citizenship and the denial of re-entry are part of a restrictive policy towards Kurds, and support the aims of the State of Syria in respect of its settlement policy, is not important when determining political persecution under Section 60 (1) sentence (5) of the Residence Act in connection with Art. 9 and 10 Qualification Directive.
Restriction of the right to attend church is an act of persecution and therefore a violation of Art 10 of the Qualification Directive.
Art 4:6 of the General Administrative Law Act, just as Art 32 of the Asylum Procedures Directive, requires not only that the claimed facts and circumstances of the subsequent application are new, but also that they are relevant and thus contribute to the likelihood that the applicant qualifies for an asylum residence permit.