17 January 2014

On 16 January, the Belgian Constitutional Court partially annulled Belgian asylum law, in the context of an appeal brought by an alliance of Belgian refugee and human rights organisations – among others the Flemish Refugee Action, Ligue des Droits de l’Homme and Coordination et initiatives pour et avec les Réfugiés et Etrangers (CIRÉ). The NGOs jointly challenged the lack of an effective remedy for asylum seekers from ‘safe countries of origin’. Without a suspensive effect of appeal, asylum seekers from countries deemed to be safe -Serbia, Montenegro, Albania, Kosovo, Bosnia-Herzegovina, Macedonia and India, in the case of Belgium- risked being returned to their country of origin while they appeal against a negative decision on their case.

Currently, asylum seekers from safe countries are provided with an ‘annulment appeal’. This appeal is not automatically suspensive and only examines the legality -not the merits- of the decision not to consider the case. Moreover the judge cannot examine new elements and can only consider the situation as it was at the time the decision was taken.  

The Constitutional Court ruled that lack of suspensive effect of the appeal for asylum seekers from “safe countries of origin” and the fact that the judge can only examine the situation as it was at the moment of the decision not to consider the case was contrary to Art. 13 of the European Convention on Human Rights (ECHR) – the right to an effective remedy – and case law issued by the European Court of Human Rights in that regard.

In Belgium, asylum seekers from ‘safe’ countries of origin are subjected to an accelerated procedure, in which their cases are resolved within 15 working days. Furthermore, once asylum seekers from safe countries of origin receive a negative decision by the first instance authority they no longer enjoy a right to be accommodated in one of the reception centres on Belgian territory; leaving them homeless and without shelter during their appeal’s proceedings.

In application of the decision of the Constitutional Court asylum seekers from safe countries of origin will have again right to a fully fledge appeal procedure, which will give them also the right to reception back.

Since the introduction of the concept of safe countries of origin into Belgian law in June 2012, a majority of applications from asylum seekers originating from these safe countries have been declared inadmissible by first instance asylum authorities.

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This article originally appeared in the ECRE Weekly Bulletin of 17 January 2014
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