Belgium: Asylum seekers coming from ‘safe countries’ and subsequent applicants will have right to an effective remedy to challenge the inadmissibility of their application

06 June 2014

An amending law on appeal procedures in asylum cases entered into force in Belgium on 1 June, following a decision of the Constitutional Court of 16 January 2014 that  annulled some provisions of the Belgian asylum law contained in the Aliens Act. The new law introduces a full review of the merits against inadmissibility decisions concerning applications from countries deemed to be safe and subsequent applications (i.e. those applications that are lodged after a previous one was rejected or discontinued).

Asylum seekers from countries deemed to be safe – Serbia, Montenegro, Albania, Kosovo, Bosnia-Herzegovina, Macedonia and India, in the case of Belgium – and subsequent applicants will be provided with an appeal that will examine not only the legality of the decision not to further examine an asylum application but also the merits of the admissibility of the application itself. The judge will also be able to examine new elements and will no longer be obliged to consider the situation as it was at the time the decision was taken. However, these appeals have to be introduced within fifteen days instead of the general thirty days period allowed for other asylum appeals.

Applicants who are detained will also be able to request the suspension of their removal decision “in extreme urgency”, introducing the request to suspend such decision within 10 days (or 5 days against subsequent removal decisions).

Thanks to the automatic suspensive effect of the appeal, asylum seekers will be allowed to stay in Belgium while they appeal against an inadmissibility decision on their case.

According to the Belgian Constitutional Court, the annulment appeal allowed under the previous law was not sufficient to provide an effective remedy (as provided for by Article 13 ECHR), since there were no legal guarantees for a suspension of the execution of the disputed decision. Only practical, and therefore unenforceable guarantees, existed.

The new law follows also several decisions of the ECtHR in which Belgium was condemned for a violation of Article 13 ECHR (Right to an effective remedy) due to its appeals system in asylum cases. In the Josef judgmentof 27 February 2014, the ECtHR established that the appeal system as a whole was too complex to meet the requirements of an effective remedy.

More information will be available soon in the updated AIDA Country Report on Belgium, compiled by ECRE member organisation Belgian Refugee Council.

This article originally appeared in the ECRE Weekly Bulletin of 06 June 2014.
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