Belgium: Constitutional Court partially annuls the Belgian law that restricted appeal rights of asylum seekers from ‘safe countries of origin’

Date: 
Sunday, February 2, 2014

On 16 January 2014, the Belgian Constitutional Court, following an appeal by several associations, partially annulled the law of 15 March 2012, because it does not give suspensive effect to an appeal by rejected asylum seekers from ‘safe countries of origin’.

According to the law, the Commissioner-General for Refugees can decide not to take into consideration applications of asylum seekers from a safe country of origin. Against this decision, only an annulment appeal, which looks only at the legality of the decision, is possible before the Aliens Litigation Council. Before this court, the asylum seeker is not allowed to submit any new elements and the appeal is not automatically suspensive. However, in cases of imminent risk of deportation, asylum seekers can lodge an appeal in extreme urgency to have the deportation order suspended. In a number of judgments, the Aliens Litigation Council has considered that such an appeal must have suspensive effect until it has decided on the request for suspension.

However, the Belgian Constitutional Court has now ruled [at B.8.6] that this does not constitute an effective remedy under Article 13 ECHR and the jurisprudence of the ECtHR. This is because the suspensive effect of the extreme urgency appeal is not explicitly stipulated in the law. Therefore, there is no effective guarantee that the Aliens Office, responsible for carrying out expulsions, will comply with the jurisprudence of the Aliens Litigation Council. The Court in addition criticised the fact that ‘safe country of origin’ appellants to the Aliens Litigation Council do not have the opportunity to present any new evidence concerning their asylum claim, because the appeal is limited to an examination of the legality of the first instance decision.

The principle of a ‘safe country of origin’ was first introduced in Belgian legislation by the law of 15 March 2012. Article 57/6/1 of the Act provides that this list should be fixed at least once a year. On 5 May 2013, the Royal Decree containing the safe country list was published in the Belgian Official Gazette. The safe countries include Serbia, Montenegro, Albania, Kosovo, Bosnia and Herzegovina, Macedonia and India.

Under this law, nationals of ‘safe’ countries are subjected to an accelerated procedure, in which their cases are prioritised by the Commissioner General for Refugees and Stateless Persons (CGRA) and resolved within 15 working days. The right to reception - i.e. housing, food etc. - for ‘safe country’ asylum seekers is removed following a refusal at first instance, while the other asylum seekers enjoy reception both at first instance and on appeal.

Based on an unofficial ECRE translation.

Read the judgment of the Belgian Constitutional Court.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners 

Keywords: 
Effective access to procedures
Effective remedy (right to)
Right to remain pending a decision (Suspensive effect)
Safe country of origin
Tags: 
Belgium