Belgium – Braban Wallon Labour Tribunal, 12 January 2018, 2018/187

Country of Decision:
Country of Applicant:
Date of Decision:
12-01-2018
Citation:
2018/187
Court Name:
Braban Wallon Labour Tribunal
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Belgium - Article 7(2) of the 12 April 2007
Belgium - Article 2
23 of the Social Charter
Belgium - Articles 7 and 13 of the 11 April 1995 Law implementing the Social Charter
Belgium - Article 2 of the 19 July 1991 Law relating to the formal motivation of administrative acts
Belgium - Article 3 of the 29 July 1991 Law
Belgium - Article 19(2) of the Judicial Code
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Headnote: 

To not allow young adults who have been refused asylum to terminate their studies deprives Article 8 ECHR of all weight, an Article which protects an individual’s professional training and personal development.  Even if the right to stay of a student is not protected by Article 8, the termination of a qualifying training which is on the horizon falls under the scope of private life within the ECHR. Therefore, the transfer of the applicant to a return centre would prevent her from finishing her schooling, ruining her 7 years of studies and would constitute a harm difficult to repair.

Facts: 

The case concerns an applicant who had arrived to Belgium at the age of 14, had applied for asylum but had been refused. She is now an adult and has appealed against the latest asylum decision to the Council of State, an appeal which lacks suspensive effect.

During the asylum procedure the applicant had been accommodated in a “Centre Public d'Action Sociale” but has since been transferred to a return centre pursuant to a decision taken by FEDASIL. The applicant is currently undertaking professional studies at a secondary education institution. Her final year of studies commenced the 1 September 2017 and will finish in the latter part of 2018. Completion of these studies will lead to a qualified training. Against FEDASIL’s decision to place her in a return centre the applicant applied for an exception to the transfer on the basis of her schooling. The was denied by FEDASIL, subsequent to which the applicant appealed to the Labour Tribunal underlining that the administrative decision had erroneously stated that the duration of her schooling was 6 years (instead of 7) and that she has the right to finish her schooling on the basis of Article 8 ECHR. She further advanced that Article 7 of the 12 January 2012, allowing for a prolongation of the date to leave the territory on grounds of schooling if an application is lodged at least 3 months before the end of the school year, is contrary to Articles 10 and 11 of the Constitution, which safeguard the prohibition against discrimination. 

Decision & Reasoning: 

The Tribunal firstly underlines that FEDASIL is a social security institution as per Article 23 of the Social Insurance Charter. It must, thus, respect the obligations under the Charter when dealing with asylum applicants. In addition, social security benefits under the Charter covers benefits both in cash and in kind.

The Tribunal goes on to note that administrative acts, which the decision given by FEDASIL falls under, must include a formal motivation, the absence of which gives rise to its nullification. The application of the Charter imposes that the language used in a motivated decision is comprehensible, allows for the recipient to verify its lawfulness and for it to be easily understood if appealed. Such guarantees further assist in guaranteeing against arbitrariness. In the case of reception for asylum applicants the Brussels Labour Tribunal has previously found that a motivated and individualised decision by FEDASIL in respect of refusing reception is a condition of its conformity with the Constitution. In the present case, FEDASIL’s decision was not substantiated in law, no legal disposition was cited which justifies its content and its factual declaration on the number of years of schooling left for the applicant was erroneous.

Turning to the Labour Tribunal’s competencies in setting aside or annulling FEDASIL’s decision, the Tribunal finds itself competent to rule on whether the applicant has a right to benefit from material assistance and the merit of her application on the exception to be transferred to the return centre. Finding that the applicant has diligently pursued her studies, the Tribunal finds that a transfer to the return centre would render precarious the applicant’s possibility to finish her studies. The right to pursue schooling for young adults constitutes a logical progression and renders effective the schooling that they have undergone as children. To not allow young adults to terminate their studies deprives Article 8 ECHR of all weight, an Article which protects an individual’s professional training and personal development.  Even if the right to stay of a student is not protected by Article 8, the termination of a qualifying training which is on the horizon falls under the scope of private life within the ECHR. Therefore, the transfer of the applicant to a return centre would prevent her from finishing her schooling, ruining her 7 years of studies and would constitute a harm difficult to repair. Thus, FEDASIL is required to accommodate the applicant in the same or similar manner as to that prior to her placement in the return centre until the end of the 2017/2018 schooling year.

Finally, the Tribunal refers a question to the Constitutional Tribunal in respect of Article 7(2) of the 12 April 2007 law. According to the Tribunal, Article 7(2) creates a distinction, if not discrimination, between students who receive a decision that their material assistance will come to an end or, their placement in a return centre, before or after the 3 months time limit. The Tribunal, thus, refers the following question to the Constitutional Tribunal:

“Does Article 7 of the 12 April 2007 law in respect of asylum seekers’ reception violate Articles 10 and 11 of the Constitution since it allows for the possibility to prolong reception on grounds of schooling for persons whose asylum procedure has finished where they apply for such prolongation on the 1 April, at the earliest, leaving other students wanting to apply for a prolongation  without any possibility to do so, thus putting in danger the pursuit of their schooling, notably for those students who are coming to an end of their training?”

Outcome: 

The Labour Tribunal annuls FEDASIL’s decision, requires FEDASIL to accommodate the applicant in the same or similar manner (i.e. close to her educational institute) as to that prior to her placement in the return centre until the end of the 2017/2018 schooling year and refers the following question to the Constitutional Tribunal:

“Does Article 7 of the 12 April 2007 law in respect of asylum seekers’ reception violate Articles 10 and 11 of the Constitution since it allows for the possibility to prolong reception on grounds of schooling for persons whose asylum procedure has finished where they apply for such prolongation on the 1 April, at the earliest, leaving other students wanting to apply for a prolongation  without any possibility to do so, thus putting in danger the pursuit of their schooling, notably for those students who are coming to an end of their training?”