Case summaries
The Council of State ruled that new evidence submitted in a subsequent application for asylum that is relied upon to prove facts and circumstances in the first application and/or to refute grounds of refusal of the first asylum application, is not to be considered a new element within the meaning of Art 51/8, Belgian Aliens Law (please see comments section below).
This case concerned subsequent applications and previous findings. The CALL ruled that, when deciding on a subsequent application, it is not competent to re-judge issues that have been decided in earlier applications. The CALL confirmed that those issues are final, unless evidence is submitted that is of such a nature that it demonstrates in a certain manner that those earlier decisions would have been different had that evidence been submitted at that time.
This case concerned the submission of evidence for a subsequent asylum application where that evidence could have been submitted in support of the initial application.
It was held that since the applicant could already have produced that evidence in his initial asylum application, the reliance on that evidence could not now be considered as evidence relating to new facts and circumstances that could be relied upon to successfully substantiate a subsequent asylum application. Further, the domestic provision of Art 4:6 of the General Administrative Law Act was not found to be contrary to Art 32 and 34 of the Procedures Directive.
This case concerned the procedure for considering new evidence in subsequent asylum applications. The CALL found that the Immigration Department had not assessed whether a submitted document constituted a new element or not, but had instead decided that the document would not result in a determination of the existence of serious indications of a well-founded fear of persecution. In doing so, it was found that the Immigration Department had acted unlawfully (Art 51/8 of the Belgian Aliens Law).
This case was an appeal against the decision of the Polish Refugee Board on refusal to accord refugee status on the grounds that the application was manifestly unfounded application, and on granting a permit for tolerated stay. The lack of grounds for an application does not mean that the case should not be examined on its merits.
When assessing a subsequent application, the authority may find that, in the framework of the new assertions of the interested party, the application is manifestly unfounded. The authority has the right to reach such a conclusion provided that the application is first examined in the context of its contents and in the context of the evidence cited by the Applicant.
The authority is also obliged to examine the case initiated by the subsequent application in light of the progress made, if any, in the case concerning the previously submitted (first) application for refugee status.
This case concerned subsequent applications for asylum. The CALL ruled that the principle of res judicata (matter already judged) is not applicable in a case where the subsequent application is not based on the same set of facts as the earlier application.
The Council also found that the Immigration Department can only reject, at the phase of taking into consideration of an application, the elements that are not new in the sense of Art 51/8 or that are manifestly irrelevant.
This case concerned subsequent applications for asylum. The Constitutional Court ruled that Art 50, (3) and (4) of the Belgian Aliens Law (current Art 51/8) should be interpreted in such a way that the possibility to lodge an appeal for suspension of that decision is only excluded in cases where the following three conditions are met:
(1) the applicant has filed an earlier asylum application that was refused;
(2) the applicant has had the opportunity to appeal this decision and to exhaust his legal remedies;
(3) the applicant is making an identical asylum application without submitting any new elements.