Belgium – Council of Alien Law Litigation, X / VIII, 25 August 2016, nr. 173 581

Country of Decision:
Country of Applicant:
Date of Decision:
25-08-2016
Court Name:
The Council of Alien Law Litigation
National / Other Legislative Provisions:
Belgium - Law of 15 December 1980 regarding the entrance to the territory
residence
establishment and removal of aliens
art. 2
39/81
51/5
Belgium - Royal Decree of 8 October 1981 on the entrance to the territory
art 71/3 §3
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Headnote: 

The transfer of asylum seekers from Belgium to Austria, under the Dublin Regulation, is contrary to the principle of due diligence, because the government has failed to obtain information on the effects of the moratorium of the processing of asylum applications in Austria.

Facts: 

The applicant travelled through Iran and Turkey to Greece, after having stayed a few days in Greece, he travelled to Austria, where he stayed in a reception centre for seven days. The applicant subsequently travelled onwards to Belgium.

The Belgian government has requested the Austrian authorities for a Dublin transfer, under the Dublin Regulation, as the applicant had already introduced an asylum application in Austria. Austria had accepted this request.

The applicant, however, disputes whether this transfer is contrary to the principle of due diligence and article 3 of the ECHR, since Austria has introduced a temporary suspension of the treatment of asylum applications. The applicant argues that there exists at least an uncertainty about the reception conditions and the right to legal assistance due to the moratorium on the processing of asylum applications.

Decision & Reasoning: 

The Council argues that the presumption, on which the system of the Dublin Regulation is based, in particular, that all the Member States will respect the fundamental rights laid down in the ECHR, is not irrefutable. An asylum applicant may not be transferred to the responsible Member State, within the framework of the (European) Dublin Regulation, when one cannot be unaware of the fact that fundamental shortcomings of the asylum procedure and reception conditions for asylum seekers in that Member State are severe, based on grounds justified by facts to believe that the asylum seeker would face a real risk of inhuman or degrading treatment.

Since the applicant submits that it is highly likely that he will be subjected to treatment contrary to Article 3 ECHR upon return to Austria, the Council should as far as possible conducted an independent and rigorous investigation of any complaint which shows that there are reasons to believe that there is a risk is present. The Council notes that the defendant considers the grievances of the applicant as purely hypothetical, since the applicant had not experienced any problems in Austria.

The Council further concludes that the defendant has failed to gather additional information about the impact of the moratorium on the processing of asylum applications, and specifically the consequences for Dublin returnees in Austria. The Council concludes that the lack of a proper examination of the facts constitutes a violation of the principle of due diligence.

Outcome: 

Appeal granted. 

Subsequent Proceedings : 

The Belgian authorities must re-assess the substance of the asylum claim. 

Observations/Comments: 

This judgment points the Belgian government to its obligation to thoroughly investigate whether the responsible Member State, under the Dublin Regulation, will respect the fundamental rights of the asylum-seeker.

Besides this, the Belgian government can no longer send asylum seekers to Austria, under the Dublin Regulation, unless they conduct additional examinations on the moratorium on the processing of asylum applications.

This case summary was written by Birte Schorpion, LLM in immigration law and current intern at UNHCR’s legal protection unit.

The case summary was proof read by Miek Lamaire, MA International Security.

Other sources cited: 

- European Council on Refugees and Exiles (ECRE), coordinated project Asylum Information Database (Anny Knapp, Asylum Information Database – National Country Report – Austria, up-to-date tot December 2014)

- Amnesty International, Quo vadis Austria? Die Situation in Traiskirchen darf nicht die Zukunft der Flüchtlingsbetreuung in Osterreich werden, 14 August 2015

- AIDA report, Navigating the Maze: structural barriers to accessing protection in Austria, December 2014

Case Law Cited: 

Belgium - Council of State, nr 104 674, 14 March 2002

Belgium - Council of State, nr 105 262, 28 March 2002

Belgium - Council of State (Raad van State, RvSt), nr 105 233, 27 March 2002

Belgium - Council of State, 151 998, 8 September 2015

Belgium - The Council for Alien Law Litigation (Raad voor Vreemdelingenbetwistingen, Rvv), nr 179 143

ECtHR- Vilvarajah and Others v. the United Kingdom, Application Nos. 3163/87 13164/87 13165/87 13447/87 13448/87

ECtHR - Y. v. Russia, Application No. 20113/07