Belgium – Council for Alien Law Litigation, 18 June 2010, Nr. 45.095, 45.096, 45.098

Country of Decision:
Country of Applicant:
Date of Decision:
18-06-2010
Citation:
Nr. 45.095, 45.096, 45.098
Court Name:
Council for Alien Law Litigation
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Headnote: 
This case concerned the status of family members. The CALL held that Art 23 of the Qualification Directive, which has no direct effect, does not create a right for the family member of a beneficiary of refugee or subsidiary protection status to benefit from the same status, and reminds Member States of the necessity to take into account the personal legal status of the family member (e.g. different nationality). Where a child has parents with two different types of status and the nationality of the child cannot be established, then the child should be given the status that is most beneficial to him/her.
Facts: 
In 1992, the applicant, of Bosnian nationality, sought refuge in Kosovo because of the conflict in Bosnia-Herzegovina. There she met her husband and in September 1993 they married in a traditional ceremony. Afterwards the applicant and her husband lived in Kosovo and then in Germany. The husband then returned to Kosovo, however, the applicant was unable to join him there because of threats that her husband received by telephone from an Albanian. They attempted to live together in Bosnia and to get officially married so that the husband could obtain Bosnian nationality, but these attempts failed because it proved impossible for her husband to obtain the necessary (Serbian) documents. Together with their daughter, who was born in Germany, they left for Belgium, where they filed an asylum application. In Belgium, the applicant gave birth to two more children. In a decision of the CALL of April 2009 the husband obtained refugee status in Belgium (decision nr. 26.565), whereas the applicant’s case was sent back to the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) for a new decision. The CALL had decided that the applicant’s fear needed to be examined vis-à-vis Bosnia-Herzegovina, her country of origin, and not vis-à-vis Kosovo, the country of origin of her husband.
 
The CGRS once again refused her claim on the basis that the applicant could not demonstrate a well-founded fear of persecution in her country of origin, Bosnia-Herzegovina. The CGRS found that nothing indicated that the applicant could not live with her family in Bosnia or that she could not have access to state protection.

The CGRS also refused the claim of the two children born in Belgium, for the same reasons. (It is unclear  what was decided regarding the eldest child, born in Germany.)
The applicant filed an appeal against these decisions.
Decision & Reasoning: 
The applicant relied on the principle of family unity  before the CALL. She argued that on the basis of this principle and  Art 23 of the Qualification Directive, the family members of a refugee should be able to obtain the same benefits as the ones given to the refugee.

The CALL made the following decision:
 
(1) The first question that was answered was under which country the application for international protection should be examined. The CALL found that this is vis-à-vis the country of which the applicant holds nationality, in this case Bosnia.
 
(2) It was then confirmed that the principle of family unity cannot cause an exception to this rule (the CALL relied on the Belgian Aliens Law and Art 1(A)(2) of the 1951 Refugee Convention). Therefore, granting derived protection to a family member of a refugee in application of this principle is not possible, if it is not compatible with the personal legal status of the family member, for example because the family member has a different nationality. Art 23 of the Qualification Directive, which also has no direct effect, creates no right for the family member of a beneficiary of refugee status or subsidiary protection status to benefit from the same status, and reminds the Member States of the necessity to take into account the personal legal status of the family member.
 
(3) It was concluded that the applicant does not have the same nationality as her husband and that her application must therefore be examined separately from his. The CGRS’ decision was upheld.
 
However, regarding the two children that were born in Belgium, the CALL took a different view (decisions nr. 45.096 and 45.098).  Given that the nationality of the children remained undetermined, the CALL found that it is appropriate to give the children the status of the parent that is most beneficial for them. , In this case it was decided that this is the status of their father and the children were granted refugee status.
Outcome: 
The applicant did not obtain refugee status (nor subsidiary protection status). Both children were granted refugee status.