Belgium - Council for Alien Law Litigation, 25 May 2016, No. 168363

Country of Decision:
Country of Applicant:
Date of Decision:
25-05-2016
Citation:
X v Minister of Asylum and Migration [2016] CCB 168.363
Court Name:
Council for Alien Law Litigation
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Headnote: 

The applicant challenged the Belgian Minister of Asylum and Migration’s decision not to grant him a humanitarian visa via an emergency application before the CALL. He relied on the following grounds: inter alia, (i) his medical condition and (ii) the poor living conditions of the West Bank in Palestine.

The CALL decided (i) these two elements justified an urgent decision, (ii) there was a risk of serious prejudice which would be difficult to remedy if the Minister’s decision was enforced, and (iii) there were serious grounds for invalidating the Minister’s decision since denying a visa to the applicant was likely to constitute a breach of art. 3 of the European Convention on Human Rights (ECHR) (prohibition of inhuman or degrading treatment), thus fulfilling the three conditions under art. 39/82 of the Belgian Aliens Law 15-12-1980. 

Facts: 

On 30 March 2016, an adult Palestinian national requested a humanitarian visa from the Belgian Minister of Asylum and Migration because of (i) his medical condition (epilepsy), (ii) the terrible living conditions in the West Bank in Palestine and (iii) the fact that part of his family was granted refugee status in Belgium (being adult, he cannot request a family reunification visa).

On 4 May 2016, his request was dismissed because the applicant had not evidenced (i) his isolation/lack of familial ties in the West Bank, (ii) that his life or his physical integrity would be threatened or (iii) that his medical conditions prevent him from supporting himself.

On 23 May 2016, the applicant filed an emergency application before the CALL in order to obtain a suspension of the Minister’s refusal to grant him a visa. The applicant also requested for the CALL to order the Minister to make a new decision within 48 hours.

Decision & Reasoning: 

Emergency suspension requires three conditions under art. 39/82 of the Belgian Aliens Law 15-12-1980 , namely (i) an emergency situation, (ii) a risk of serious prejudice that is difficult to remedy, and (iii) serious grounds justifying the annulment of the decision challenged.

The CALL ruled that these three conditions were met in the case at hand given the medical condition of the applicant (epilepsy) and the terrible general conditions of living in the West Bank. These two elements (i) justified an urgent decision, (ii) suggested that a risk of serious prejudice that is difficult to remedy would exist if the Minister’s decision was enforced, and (iii) proved that serious grounds for annulment existed since denying a visa to the applicant was likely to constitute a breach of art. 3 of the ECHR (prohibition of inhuman or degrading treatment).

Hence, the CALL suspended the Minister’s decision and ordered him to make a new decision, granting a three-month visa to the applicant, within five days.

Outcome: 

Application granted

Observations/Comments: 

This case summary was done by Linklaters LLP.

Case Law Cited: 

ECtHR - Y. v. Russia, Application No. 20113/07

Belgium - Council of State, 13 August 1991, No. 37530

ECtHR - Conka v Belgium (Application no. 51564/99)

Belgium - Conseil d’Etat (Council of State), 6 July 2005, No. 147.344

ECtHR - N v Finland, Application no. 38885/02

ECtHR, 24 February 2009, L’Erablière A.S.B.L. v Belgium

Belgium - Cour de cassation (Supreme Court in civil matters), 15 April 2016, C.13.0343.F

ECtHR - Fatgan Katani and others v Germany, Application no. 67679/01