Belgium - Brussels Labour Tribunal Interprets "Actual Transfer" under the Dublin Regulation in light of CJEU Case Cimade and Gisti

Friday, January 23, 2015

The Brussels Labour Tribunal has had to grapple with the definition of an “actual transfer” under the Dublin Regulation, a pre-condition to bringing an end to minimum reception conditions of asylum seekers in a sending State, as clarified in Case C‑179/11 Cimade and Gisti [55].

The case relates to the substance of an interim relief decision given in November by the Brussels Labour Tribunal ordering FEDASIL to accommodate a family who had been previously denied reception by FEDASIL. The reasons for rejecting accommodation related to the provision of an Annex 26 quater (a rejected decision on account of Spain’s responsibility for the application under Dublin II) travel documents and visas to Spain. According to FEDASIL furnishing these documents constituted an actual transfer to Spain and given that the applicants had not appealed against this transfer decision, FEDASIL refused to grant them accommodation.

In this substantive appeal the Tribunal looks at the notion of an “actual transfer” and surmises that there are two current approaches. The first is that referred to by FEDASIL relating to the provision of documents. This has also been cited in jurisprudence from one Labour Court which additionally highlighted that European law fixes a set period of time for reception. Thus, according to the Court, an asylum seeker is responsible for any detrimental situation where he has not appealed a transfer decision. The second approach, which the Tribunal later goes onto adopt, rejects that an actual transfer occurs where the Annex 26 quater order to leave the territory has expired. This would clearly go against the meaning of “actual transfer” used by the CJEU in Cimade. Agreeing with this interpretation the Tribunal notes that where the removal order has expired but the applicants are still in Belgium there has not been an actual transfer, this remains the case even where the applicant has not appealed against a transfer decision in front of the Council for Alien Law Litigation. The Tribunal goes onto note that this reading is in line with the CJEU’s argumentation in Cimade which does not focus on the actions of the applicant.  

As a consequence the Tribunal finds that minimum reception conditions must be provided to asylum applicants up until they are actually transferred.  The Tribunal thus sets aside FEDASIL’s decision and requires the Agency to accommodate the family.  

The ELENA Weekly Legal Update would like to thank Franz Geleyn for bringing this case to our attention.

Based on an unofficial ELENA translation.

23 January 2015                                 

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.

Dublin Transfer
Reception conditions