Belgium – Brussels Labour Tribunal, 13 December 2017, 17/5651/A

Country of Decision:
Country of Applicant:
Date of Decision:
13-12-2017
Citation:
17/5651/A
Court Name:
Brussels Labour Tribunal
National / Other Legislative Provisions:
Belgium - Article 1
paragraph 1
Article 57 of the Organic Law of 8 July 1976 on Public Social Action Centres
Belgium - Article 3
9
11
12
13 of the Law of 12 January 2007
Belgium - Article 23 of the Constitution
Belgium - Article 580 of the Judicial Code
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Headnote: 

The applicant, a victim of rape and forced marriage, has a subjective right to reception which allows her to live a life compatible with human dignity in light of her vulnerability and the minimum norms of reception. This right is entirely linked with FEDASIL’s competences to ensure reception is adapted to an individual’s circumstances. The statement of the asbl SOS VIOL clearly justifies why the applicant should be accommodated in a Local Reception Initiative, reception which is better adapted to the symptoms that she suffers from, notably anxiety and fear of men.The criticism of the asbl's statement whilist not providing any pschological assessment themselves, meant that FEDASIL’s decision not to transfer the applicant to adapted accommodation was negligent. 

The applicant is entitled to be transferred to individual accommodation and moral damages in the region of 2.500 euros.  

 

Facts: 

The applicant in this case is a Gambian national who arrived in Belgium the 10 September 2016. Several days after her arrival she was raped. She later applied for asylum and was placed in an accommodation centre, Foyer Selah. Her application for asylum is still pending.  The applicant is monitored on a regular basis by an asbl SOS VIOL, who have provided written statements testifying to the extreme vulnerability of the applicant due to her experiences in Belgium, her forced marriage in the Gambia and the abandonment of her three children.

In the statement, the asbl notes that the applicant suffers from post-traumatic stress disorder, the effects of which make life in a mixed community centre unbearable. The asbl’s recommendation was to place her in a structure better adapted to her symptoms, where she could have a single bedroom and was not confronted with so many people.  In reliance on this statement the applicant requested FEDASIL to transfer her to adapted accommodation. This request was refused by FEDASIL on grounds that the applicant is monitored by psychological services and that places in individual accommodation are very limited. The applicant appealed this decision to the Labour Tribunal. 

Decision & Reasoning: 

In respect of the applicant’s request to be transferred to individual accommodation in Brussels, the Tribunal first underscores the relevant legislation. In particular, under Belgian domestic law everyone has a right to social assistance which aims to ensure that persons lead a life in accordance with human dignity and that the right to material assistance provided by FEDASIL to asylum applicants is a form of social assistance which must also respect an individual’s human dignity.

Respect for human dignity is also safeguarded under Article 23 of the Constitution and under Article 1 of the Charter of Fundamental Rights. It is also guaranteed under the Reception Conditions Directive which further states that material reception conditions for asylum applicants must be adequate and must protect their physical and mental health and that the particular situation of vulnerable persons, namely those who have been subjected to rape, be taken into account by Member States. Reception standards under the Directive are to be ensured regardless of a saturation in reception and whilst the provisions of the Directive cannot be interpreted as leaving asylum applicants a choice in the reception they receive, this is without prejudice to more favourable domestic provisions.

The Tribunal finds that the competence of FEDASIL to examine whether reception is adapted  to the individual’s requirements is entirely linked with a right for asylum applicants to live a life compatible with human dignity (as per domestic legislation which states that an asylum applicant residing in a centre can ask to be transferred to an individual centre).  The Tribunal holds that if FEDASIL is judged as not having taken into account, or insufficiently taken into account, the right of applicants to have material aid in conformity with human dignity, the Tribunal can and must set aside that decision and substitute it with a decision which is conform to those requirements.

With this in mind, the Tribunal finds that the applicant has a subjective right to reception which allows her to live a life compatible with human dignity and which is linked to FEDASIL’s competencies. The statement of the asbl SOS VIOL, which the Tribunal has cited from, clearly justifies why the applicant should be accommodated in a Local Reception Initiative, reception which is better adapted to the symptoms that she suffers from, notably anxiety and fear of men, than the mixed reception centre where promiscuity is rife. According to the Tribunal, FEDASIL is in a difficult position to criticise the statement from SOS VIOL when it has not ordered a psychologist to examine the applicant or a requested a FEDASIL doctor to do so. Thus, its conclusions that the conditions of the centre are suitable for the applicant are not based on an expert opinion. Indeed, the decision taken by FEDASIL appears to be founded on very few considerations which are not based on a serious and appropriate assessment of the applicant’s situation. Moreover, the limited number of places in individual accommodation is irrelevant since it cannot justify a violation of the applicant’s right to have adapted accommodation which respects her right to live a life in accordance with human dignity in light of her vulnerability and the minimum norms of reception.

Finally, the Tribunal holds that the rights guaranteed by  the law of the 12 January 2007 and the Reception Directive are not theoretical rights, they must be concretely respected. Both FEDASIL and the court must prevent the risk of a violation of the right to lead a life of human dignity in consideration of the vulnerability of an asylum seeker. The Tribunal therefore accedes to the applicant’s appeal.

The Tribunal also holds that since FEDASIL had not behaved in a prudent and diligent manner and had not examined the request of the applicant with the requisite attention, the applicant is entitled to moral damages in the region of 2.500 euros.  


 

Outcome: 

The Tribunal sets aside the decision of FEDASIL, orders FEDASIL to designate an individual accommodation structure for the applicant and requires the Agency to pay damages to the applicant in the sum of 2.500 euros.