Belgium – Council for Alien Law Litigation, 13 May 2011, Nr. 61.439

Country of Decision:
Country of Applicant:
Date of Decision:
13-05-2011
Citation:
Nr. 61.439
Court Name:
Council for Alien Law Litigation
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Headnote: 
The CALL held that a psychological report, submitted in the context of a subsequent application, which indicated that the applicant’s condition seriously affected his intellectual capacity, could be considered as a “new element” within the meaning of Art 51/8 of the Belgian Aliens Law (please see comments section below), as it implied that the application should be dealt with according to a special procedure (§§ 208-211, UNHCR handbook).
 
Facts: 

The applicant, of Egyptian nationality, arrived at the airport on the 1 February 2011. He did not fulfil the requirements to enter the territory and filed an asylum application that day. On 17 February 2011 the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) refused to grant refugee and subsidiary protection status. A first attempt of removal failed. On the 05 May 2011 the applicant filed a second asylum application and on the 10 May 2011 the Immigration Department refused to consider the application.  In the meantime the Immigration Department also decided ‘to refuse the applicant entry on the territory with refoulement’, and detained him at the border. On 12 May 2011 the applicant lodged an appeal with the CALL, in which – in a procedure of extremely urgent necessity (please see country overview) – he asked for the suspension of the execution of the Immigration Department’s decision.

Decision & Reasoning: 
The Immigration Department provided the following reasons for its decision: “considering that the applicant filed a second asylum application (…), in which he submitted a psychological report dated 11 March 2011; considering that these medical findings cannot alter the decision of the CGRS; considering that the applicant also submitted the positive decisions regarding the asylum applications of his family in Canada in 2003 and 2005; considering that he could have submitted those in his first application; considering that the applicant did not submit any new elements within the meaning of Art 51/8 of the Belgian Aliens Law.”

In his appeal the applicant claimed that the Immigration Department had violated Art 51/8 of the Belgian Aliens Law. He claimed that the psychological report constituted a new element, as it could not be excluded that the reasons underpinning the first decision of the CGRS (such as contradictions and vagueness) were the consequence of his psychological condition. The applicant asserted that the CGRS was required to re-examine his application in light of his psychological condition and carry out an interview according to the procedure as described in §§ 208 to 211 of the UNHCR Handbook regarding the interviewing of asylum seekers with psychological problems. The “new element” thus had an important implication on the procedural character of the asylum application. It was not up to the Immigration Department to determine the relevance of the exhibit on behalf of the CGRS’.

The CALL firstly examined the admissibility of the claim. In accordance with the interpretation that the Constitutional Court has given to Art 51/8 of the Belgian Aliens Law in its decisions 61/94 and 83/94 (see summary elsewhere in this database), a claim for suspension of the Immigration Department’s decision is possible when the applicant alleges that the authority unjustly disregarded the “new elements” that were submitted, which was the case here. The CALL agreed with the applicant’s line of argument. From the produced exhibit it transpired that the applicant had psychological problems that seriously affected his intellectual capacities. From the file it further appeared that this psychological condition had been signalled several times to the Immigration Department and that the Immigration Department had never contested it. And while it appeared that the CGRS had been warned about the applicant’s psychological problems prior to the first interview, it did not appear prima facie that a special procedure had been followed during that first interview, in conformity with §§ 208 to 211 of the UNHCR handbook; nor had reasons been given why this was not done. Considering these aspects, the CALL ruled that the applicant’s argument could (prima facie) be agreed with. The claim for suspension of the Immigration Department’s decision was therefore considered admissible.

In its decision the CALL further examined the three cumulative conditions for a procedure of “extremely urgent necessity”: extremely urgent character, seriousness of the arguments, and a disadvantage that would be hard to repair. The CALL found that these conditions were fulfilled.
Outcome: 

The CALL ordered, , the suspension of the Immigration Department’s decision.

Observations/Comments: 
The legal provision, Art 51/8 of the Aliens Law, states:
 
“The Minister or his/her mandate holder can decide not to take into consideration an asylum application when the foreign national has previously filed the same application (…), and he/she does not present new elements that there exist, in his/her respect, serious indications of a well-founded fear of persecution (…), or serious indications of a real risk of serious harm (…). The new elements should relate to facts or situations that have occurred after the last phase in the procedure in which the applicant would have been able to present them."