Belgium - Belgian Aliens Litigation Council submits judgment on the Belgian extremely urgent procedure and the interpretation of an effective remedy

Monday, November 3, 2014

The case concerns a mother and her six children who after being granted leave to remain on the basis of medical grounds saw their application for stay discontinued with an order to leave the territory. In response the applicant lodged a request to suspend the decision and order under the extremely urgent procedure. The court is therefore tasked with a consideration of the three requirements needed for suspending a decision under the extremely urgent procedure.

Firstly, the court considers the requirement of extreme urgency. Whilst the extreme urgency procedure is usually reserved for those in detention, the court notes that exceptions are to be made (Josef v. Belgium). Notably, in this case, given that the refusal to prolong leave to remain would bring to a halt social aid, housing and education, detrimentally affecting the health of the family, the Court submits that this would breach Article 3, 8 of the ECHR and Article 3 of the Convention on the rights of Child, which requires that the best interests of the child are a primary consideration in all actions concerning children. The risk that these rights would be violated is accordingly sufficiently imminent to fulfil the urgency requirement. Adding to this that Belgian law does not recognise the suspensive effect of an appeal against removal (as identified in SJ v Belgium) means that the only suspensive procedure available against a return decision is the extreme urgency one, the Court, with this cumulative reasoning, submits that the first condition has been fulfilled.

Secondly, the court notes that the requirement of serious reasons which would justify the transfer decision being cancelled has been met as the decision had breached Article 41 of the Charter of Fundamental rights (right to good administration) which comprises of the right to be heard and an impartial examination by the State of all relevant elements. Regardless of this the State had proceeded with a decision without leaving the applicants to provide up to date medical documents thus constituting a violation of 41.

Thirdly, and lastly, the court submits that the criterion of causing irreparable harm if the execution of the act were to be carried out had been met as return could endanger the applicants’ health and a dissolution of the right to family life. The court therefore submits that the decision refusing status under the extremely urgent procedure along with the order to leave the territory is to be suspended.

The ELENA Weekly Legal Update would like to thank ELENA coordinator Tristan Wibault for notifying us of this judgment

31 October 2014

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.         

Best interest of the child
Right to remain pending a decision (Suspensive effect)