Belgium – Brussels Appeal Court, 4 January 2018, 2018/25

Country of Decision:
Country of Applicant:
Date of Decision:
04-01-2018
Citation:
2018/25
Court Name:
Brussels Appeal Court
National / Other Legislative Provisions:
Belgium - 7
71 et 72 de la loi du 15 décembre 1980 sur l'accès au territoire
le séjour
l'établissement et l'éloignement des étrangers
Belgium - 30 de la loi du 20 juillet 1990 relative à la détention préventive
Belgium - 11
12
13
16
24
31 à 37 et 41 de la loi du 15 juin 1935 sur l'emploi des langues en matière judiciaire
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Headnote: 

Where an individual is detained with a view to his removal and an Article 3 violation is alleged if the applicant is returned, it is for the Court to rule on the plea and thus assess the lawfulness of the decision to detain.

In the light of the ECtHR jurisprudence on Article 3 ECHR and country of origin information on Sudan the Belgian authorities had to rigorously verify if the applicant would risk being subjected to treatment contrary to Article 3 ECHR before issuing the order to leave the territory, which includes giving the applicant an effective opportunity to be heard. This applies regardless of whether the applicant had applied for asylum or not. 

Facts: 

The applicant is a Sudanese national who, at an unknown date, arrived in Belgium and was later given, on 16 August 2017, an order to leave the territory. He was later arrested and given another return order which was accompanied by a detention order. The applicant successfully appealed the detention order before the Court of Appeal sitting in chambers which was subsequently turned over on account of the State’s argumentation that measures to effectuate the removal would be taken within seven days and carried out with the required due diligence. The prolongation of the detention was later annulled by the Cassation Court and remitted to the Brussels Appeal Court.

The applicant complains, on grounds of the risk which is presented to the applicant if returned to Sudan, of a breach of Article 3 by the Belgian state. Conversely the State advances that the applicant has not applied for asylum and thus a violation of Article 3 is premature. Indeed, by not applying for asylum the applicant has not demonstrated that he risks his Article 3 rights being violated if returned. 

Decision & Reasoning: 

According to the Court, Article 3 ECHR is one of the most fundamental values of a democratic society. Where an individual is detained with a view to his removal and an Article 3 violation is alleged if the applicant is returned, it is for the Court to rule on the plea and thus assess the lawfulness of the decision to detain.

In light of the country of origin information on Sudan, a return cannot be envisaged to the country without the Secretary of State for Asylum and Migration being certain that the applicant will not be returned to a situation where his Article 3 rights would be violated. There is nothing from the evidence presented which shows that an analysis had been undertaken prior to the decision to return and detain the applicant. In addition, the applicant did not have an effective possibility to be heard; a hearing only happened after the return decision had been taken.  

Therefore, the decision to detain was unlawful. This is even more evident in light of the numerous NGO reports underlying human rights violations in the country and the high number of Sudanese who have been given protection status. It is the State’s duty to undertake the necessary analysis and at the very least provide the applicant with the right to be heard regardless of whether he applies for asylum. Moreover, the decision to prolong the detention did not assess the allegation of Article 3 ECHR.

Lastly, the Court notes that from the evidence presented returns to Sudan appear to have been suspended up until the end of January. Moreover, testimonies of Sudanese who have been ill-treated upon return confirms that the possibility to return Sudanese nationals to their country of origin has not been fully clarified.

Outcome: 

The order to release the applicant given by the Court of Appeal sitting in chambers is confirmed. 

Subsequent Proceedings : 

The decision was appealed by the State to the Belgian Cassation Court. The State contended that in only three regions of Sudan did applicants benefit from subsidiary protection and only those belonging to a non arab ethnicity were granted refugee status, that the applicant was at fault for not presenting proof that he risked inhuman or degrading treatment and that the applicant did have the opportunity to be heard. In a judgment from the 31 January 2018 No. P.18.0035 the Court of Cassation dismissed the appeal on all three points raised by the State. The Court dismissed the argument that the State is only obliged to assess an Article 3 risk if the applicant has applied for asylum. Notably, the Court holds that after the applicant's nationality had been assessed and that he would be returned to his country of origin and in light of the well-known information from various sources on country conditions in Sudan and the high recognition rate for Sudanese nationals, the State, in advance, is obliged to undertake the necessary verifications, specifically in respect of Article 3 ECHR. 

In a later and separate decision from the Brussels Court of Appeal (2018/746) concerning the prolongation of a detention measure for a Sudanese national for a fifth month, the Court held that neither the detention measure nor a decision on its extension had taken into account the risk of inhuman treatment for the individual if returned to Sudan. The examination of an Article 3 ECHR risk must be done before a decision to detain is given and neither did documentation from the CGRA on the risk of inhuman treatment in Sudan nor a previous decision given by the Immigration Office on the particular circumstances of the applicant constitute a thorough examination of the risk the applicant may face if returned to the country. 

Observations/Comments: 

This case follows several other decisions given by the Council of Alien Law Litigation (n° 192 584 26 September 2017), First Instance Tribunal of Brussels (12 October 2017) and Liege (9 October 2017) which respectively held that the Belgian authorities had to rigorously verify if the applicant would risk being subjected to treatment contrary to Article 3 ECHR before issuing the order to leave the territory, that the applicant had not been given an opportunity to be heard and that in the CALL case it was not clear whether a transfer to France or Italy (where the applicant had applied for asylum) would be effectuated or whether return directly to Sudan would occur. Thus a return would breach Article 3 ECHR and Article 33 of the Geneva Convention.

In respect of the decision given by the First Instance Tribunal of Liege, the Tribunal highlights the intensified police operations against Sudanese nationals in Brussels, which renders these persons highly distrustful of any public authority, as well as the Sudanese mission invited by the Belgian State to undertake identification of Sudanese nationals; a delegation which is linked to the security services of Sudan; an actor of persecution in the country. The Tribunal cites various inter-governmental and NGO reports on Sudan alongside the fact that Omar Hassan Al Bashir is subject to an international arrest warrant from the International Criminal Court for genocide, crimes against humanity and war crimes committed in the country. Moreover, the Tribunal highlights that the right of Sudanese nationals, detained in Belgium with a view to their removal, to be heard has been violated by the State since the detention places them in a vulnerable situation compounded by the fact that they do not have access to lawyers or procedures. In light of these findings the Tribunal prohibits the return of all detained Sudanese, prohibits the identification of Sudanese nationals by the Sudanese mission and orders the State to pay 20.000 euros if a breach of either one of those orders occurs.