Belgium - Constitutional Court, 16 January 2014, Nr 1/2014

Country of Decision:
Country of Applicant:
Date of Decision:
16-01-2014
Citation:
1/2014
Court Name:
Constitutional Court
Printer-friendly versionPrinter-friendly version
Headnote: 

An action for annulment before the Council for Alien Law Litigation was not an effective remedy. The Law of 15 March 2012 limiting the remedy against a decision rejecting an asylum application to an action for annulment when the Applicant came from a safe country of origin, whereas other applicants were able to seek a ‘full-remedy action’, breached the principle of equality and non-discrimination enshrined in Articles 10 and 11 of the Belgian Constitution. The said Law was therefore repealed by the Constitutional Court.

Facts: 

Various NGOs applied to the Constitutional Court for the Law of 15 March 2012 to be repealed. That Law provided that asylum seekers from safe countries of origin, unlike other asylum seekers, could not bring a full-remedy action against a decision to reject their asylum application but could only bring an action for annulment. Unlike the full-remedy action, an action for annulment did not have automatic suspensive effect and restricted the monitoring powers devolved to the Council for Alien Law Litigation (the CALL).

Decision & Reasoning: 

The Applicant NGOs sought a repeal of the Law of 15 March 2012, under which only an action for annulment could be brought before the CALL to challenge a decision not to take into consideration an asylum application made by a national of a safe country of origin. They claimed there was a breach of the principle of equality and non-discrimination enshrined in Articles 10 and 11 of the Belgian Constitution, read in conjunction with Articles 3 and 13 of the European Convention on Human Rights, Article 47 of the Charter of Fundamental Rights of the European Union and Article 39 of Council Directive 2005/85/EC.

The Court found firstly that an action for annulment before the CALL did not have the effect of suspending the decision to reject the asylum application. In addition, when it examined the legality of that decision, the CALL was limited to examining the facts of which the authorities were aware at the time of making the decision.

For this reason, the Court found that an action for annulment was not an effective remedy within the meaning of Article 13 of the European Convention on Human Rights.

Secondly, the Court reiterated that, when declaring a breach of Article 13 of the European Convention on Human Rights, the European Court of Human Rights took into consideration all of the remedies available to applicants. Apart from an action for annulment against the decision rejecting their asylum application, claimants were also able to apply for an emergency injunction against the deportation order accompanying the rejection.  

An emergency injunction application must be made within five days (of which at least three must be working days) of notification of the deportation order. This five-day time limit was extended by case-law of the CALL, which said that any emergency injunction application made within the time limit for an application for an action for annulment, that is, thirty days, suspended the deportation order.

However, the Court found that the extension to the time limit effected by the CALL’s case-law did not amount to a ‘guarantee’, as required by the European Court of Human Rights in the Conka case. In fact, without a change to the law, the authorities were likely to continue to deport applicants who applied for an emergency injunction outside the legal five-day time limit.

Moreover, an application for an emergency injunction only led to a suspension of the deportation order by the CALL if the Applicant could demonstrate the extreme urgency of his/her situation, give a serious ground for annulment and prove a danger of serious harm that would be difficult to compensate. When assessing the seriousness of the ground for annulment relied upon, the CALL was not compelled to take into consideration facts subsequent to the administrative decision. Even if CALL case-law took into consideration new facts when assessing the risk of breach of Article 3 of the European Convention on Human Rights in the event of a return, this practice did not amount to a guarantee.

For this reason, an emergency injunction was not an effective remedy within the meaning of Article 13 of the European Convention on Human Rights.

Thirdly, the Court considered whether the difference in the treatment of asylum seekers according to whether or not they came from a safe country of origin, since only those who did not could rely on an effective remedy, constituted discrimination as prohibited by Articles 10 and 11 of the Constitution. In order for a difference in treatment not to constitute discrimination as prohibited by the Constitution, it needs to be based on a criterion that is (1) objective, (2) relevant and (3) in proportion to the intended objective.

(1) The Court held first that the difference in treatment was based on an objective criterion, namely the nationality of the asylum seeker. This criterion was accepted by the Court of Justice of the European Union in the case of H.I.D. and B.A. to justify an accelerated procedure for certain asylum applications.

(2) The Court then examined the relevance of the asylum seekers’ nationality as regards their right to an effective remedy. It noted that in H.I.D. and B.A, the Court of Justice of the European Union stated that an accelerated procedure for an asylum claim could not be used to the detriment of the fundamental guarantees instituted by Council Directive 2005/85/EC. Among these fundamental guarantees was the right to an effective remedy, which, according to the CJEU’s judgment in Samba Diouf, should be available to challenge any decision rejecting an asylum claim.

The decision to refuse to take into consideration an asylum application made by a national of a safe country of origin entailed the rejection of his asylum application. It must therefore be capable of challenge via an effective remedy within the meaning of Article 39 of Council Directive 2005/85/EC and Article 47 of the Charter of Fundamental Rights.

The right to an effective remedy recognised by Article 47 of the Charter must be defined “by reference” to that enshrined in the European Convention on Human Rights. It followed “that the remedy should have a suspensive effect and permit a rigorous and complete examination of the Applicants’ case by an authority with the power to award full remedies”(recital B.10.7 of the judgment). Moreover, the right to an effective remedy enshrined in Article 39 of Council Directive 2005/85/EC assumed not only an examination of the risk of a breach of Article 3 of the European Convention on Human Rights but also of a breach of the provisions concerning recognition of refugee status or the grant of subsidiary protection. This was not the case with either an action for annulment or an application for an emergency injunction.

For this reason, the applicants’ nationality was not a relevant criterion for differentiation. It did not justify suppressing the right to an effective remedy for applicants from safe countries of origin and constituted a breach of the prohibition on discrimination enshrined in Articles 10 and 11 of the Constitution.

(3) In any event, the Court specified that suppressing the right to an effective remedy was not in proportion to the wish for speed cited by the legislature. Other measures, such as a reduction of the time limit for applying for a full-remedy action, were possible.

In conclusion, the Constitutional Court repealed the Law of 15 March 2012 under which only an action for annulment could be used to challenge a decision to refuse to take into consideration an asylum claim made by a national of a safe country of origin.

Outcome: 

Repeal of the Law of 15 March 2012 limiting the remedy for a decision rejecting an asylum application before the CALL to an annulment action when the applicant was from a safe country of origin.

Observations/Comments: 
By a 2012 reform, Belgium amended its Law of 15 December 1980 in order to transpose into Belgian law the provisions of the Procedures Directive concerning applicants originating from safe countries. 
 
Article 57/6/1, regarding the first instance procedure, provided that asylum applications made by a national of a safe country of origin would be the object of an accelerated examination by the Commissioner General for Refugees and Stateless Persons. The CGRS could refuse to consider them “when it does not clearly appear from the asylum seeker’s declarations that there is, in relation to him, a well-founded fear of persecution […] or serious grounds to believe that he runs a real risk of serious harm”. 
 
In its judgment N°107/2013 dated 18 July 2013, the Constitutional Court confirmed this provision in as much as, in implementing it, the authorities take sufficient account of the particular needs of vulnerable applicants such as unaccompanied foreign minors (recital B.12.3. of that judgment).
Article 39/2, concerning the appeals procedure, provided that an asylum seeker could only take an annulment action to challenge a decision made pursuant to Article 57/6/1 not to take his application into consideration.
 
This provision, criticised by legal commentators (Luc Leboeuf, ‘Safe countries in Belgian asylum law. The "safe country of origin", "safe third country" and "first country of asylum" in the Law of 1980 and the case-law of the Council for Alien Law Litigation’ (2012) Revue du droit des étrangers 193-205), was repealed by the judgment referred to here. 
 
See also EDAL journal article here.
 
This summary was provided courtesy of DLA Piper.
 
Case Law Cited: 

Belgium - Council for Alien Law Litigation, 17 February 2011, Nr 56208

Belgium - Council for Alien Law Litigation, 17 February 2011, Nr 56207

Belgium - Council for Alien Law Litigation, 17 February 2011, Nr 56205

Belgium - Council for Alien Law Litigation, 17 February 2011, Nr 56204

Belgium - Council for Alien Law Litigation, 17 February 2011, Nr 56203

Belgium - Council for Alien Law Litigation, 17 February 2011, Nr 56202

Belgium - Council for Alien Law Litigation, 17 February 2011, Nr 56201

ECtHR - Yoh-Ekale Mwanje v Belgium, Application No 10486/10

ECtHR - Singh and Others v. Belgium, Application No. 33210/11

ECtHR - Conka v Belgium (Application no. 51564/99)