Belgium: Brussels Labour Tribunal rules on social support for applicant appealing against return order on medical grounds

Friday, March 13, 2015

Based on Article 9ter of the Belgian Aliens Act, authorising a residence permit for medical grounds, the applicant, a Moroccan national, saw his application refused by the Aliens Office (AO), later cancelled by the Council of Alien Law Litigation (CALL) and again refused by the AO in a final decision with an order to leave the territory. Whilst a suspensive annulment appeal against this last decision is pending before the CALL this case relates to the decision taken by the Public Centre for Social Welfare (CPAS) to withdraw social aid from the applicant on grounds of his irregular stay in Belgium.  

The case is therefore before the Brussels Labour Tribunal who first notes that under Belgium domestic law, a person who is in Belgium irregularly only has a right to urgent medical aid unless there is a force majeure which prevents return. In this case the limitation of medical aid would not apply and instead social financial aid would be provided.

Noting that the annulment appeal before the CALL in cases regarding an Article 9ter claim does not have a suspensive effect, the Tribunal refers to S.J v Belgium as well as Abdida which states that national legislation which does not give suspensive effect to an appeal challenging a return decision and which may expose the applicant to a serious risk of grave and irreversible deterioration in his state of health must be precluded. Analysing whether this serious risk exists in the present case, the Tribunal notes that the necessary treatment for the applicant’s illness is not available in Morocco. Therefore, the applicant has shown that on account of medical grounds it would be impossible to return to the country and thus the order to leave the territory cannot be carried out. As a consequence the domestic provision on urgent medical aid does not apply to his case.

Finding that the applicant is in a state of need the Tribunal concludes that the applicant does have a right to social aid and this will be accorded to the applicant up until the CALL has provided its judgment on the appeal against the decision of the AO.

Based on an ELENA unofficial translation.

The ELENA Weekly Legal Update would like to thank Julien Wolsey for notifying us of this decision.

13 March 2015
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Effective remedy (right to)
Health (right to)
Right to remain pending a decision (Suspensive effect)