Belgium - The CALL suspends return to Spain under extreme urgency procedure

Monday, December 8, 2014

Following the lodging of an asylum application in Belgium the applicant, a Guinean national, saw his application refused with an order to leave the territory on the basis that Spain under Article 13.1 of Dublin III was competent to deal with his asylum request. The applicant subsequently lodged a request with the Council of Aliens Law Litigation (CALL) to suspend the transfer to Spain under the “extremely urgent procedure.” The case thus relates to whether the three conditions relating to “extreme urgency” have been fulfilled.

Firstly, the CALL notes that in light of the applicant’s detention extreme urgency is presumed. Secondly, given the requirement of providing serious reasons to justify the transfer decision being cancelled, the CALL submits that an independent and rigorous examination of each point raised by the applicant relating to possible violations of the ECHR (principally Article 3) has to be undertaken.

In this manner the applicant had submitted that he had suffered from both physical and psychological traumas in his country of origin, evidenced by a medical report, although not submitted to the Belgian authorities. Moreover, if returned to Spain there was a risk that his application would not be handled correctly and that there were serious violations in both the procedural and reception systems for asylum seekers in Spain, manifested by the fact that he was unable to lodge his asylum application there.

In response the CALL noted that it did not matter that the medical documents certifying serious ill treatment had not been given to the State. Instead the report completed by a doctor in a State run centre should have been enough to alert the authority’s attention to the vulnerability of the applicant. Moreover, the authorities had not presented any assurances that the applicant would not be transferred to Melilla where reports of racial abuse, discrimination and xenophobia had been documented. Additionally, no guarantees had been provided that the applicant would be able to lodge an asylum application and that the Spanish authorities would proceed with an individual and thorough assessment of the claim. This, according to the CALL, was particularly troublesome given the many reports of deficiencies within the Spanish asylum procedure.

Lastly, the CALL held that an irreparable harm would arise, stemming out of the applicant’s real risk of being subjected to treatment contrary to Article 3 if returned to Spain. The CALL thus suspended the transfer decision.

NB:  If they decide to do so the Belgian State is able to appeal this judgment by taking the case to the Council of State. See AIDA country report Belgium.

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

Based on an unofficial ELENA translation

5 December 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.     

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