Belgium: Council of State suspends ‘pilot project’ on videoconference asylum interviews

Monday, December 7, 2020

On 7 December 2020, the Belgian Council of State ordered the suspension of the execution of an act of the Commissioner-General for Refugees and Stateless Persons (CGRS) concerning the use of videoconference facilities in asylum interviews.

The CGRS had adopted a decision, around 18 November 2020, to hold an unknown number of personal interviews with asylum applicants by videoconference and called this decision a ‘pilot project’ that, on the long term, could provide for the framework of the organisation of interviews by videoconference parallel to the organisation of ‘in person’ interviews. However, this document was never published, nor communicated publicly and seemingly contradicted the dispositions of a Royal Decree that regulated the modalities of the interviews that the CGRS was tasked to conduct.

By consequence, the question before the interim relief judge of the Council of State, was whether the CGRS had the competence to adopt rules that amended certain parts of a Royal Decree, in light of the consequences that such amendments could have on the rights of asylum applicants.

The applicants, several Belgian NGOs, held that such interviews could impact the processing of special categories of personal data (Article 9 GDPR) and could influence the credibility of the elements that asylum applicants presented during their interview. Indeed, they underlined that the Belgian Law regarding the entry, residence, settlement and removal of aliens, attaches particular importance to the elements that are brought forward during an ‘in person’ interview and, therefore, that the absence of such interview could alter the credibility of such elements. In this regard, they underlined that the applicants could fear that the sensitive elements that they communicate, would be intercepted and stored by third-parties, which could, in turn, very significantly increase the risks of error in assessing their fear of persecution, without being able to benefit from the assistance of adequate legal counsel, and without the necessary confidentiality of the interview being guaranteed, and without the possibility of adequate reparation of these rights. In this context, the applicants invoked, inter alia, Articles 7, 8 and 47 of the EU Charter, Article 8 of the ECHR and the rights of defence. Finally, they claimed that, while the idea is to speed up the decision-making process of the CGRS, the new procedures would increase the number of cases brought before the Council of Alien Law Litigation and, ultimately, slow down the asylum procedures.

The judge agreed that the adopted rules intervene in the ‘sensitive’ area of international protection, which entails that, if they are enacted by an incompetent author and outside of the required legal framework, they do not provide for the necessary guarantees that the applicants for international protection require. In the case at hand, the judge ascertained that the CGRS did not have the necessary competence to adopt the ‘pilot project’-decision as it would modify the ‘in person’ procedure set out in the Royal Decree. Therefore, it ordered the immediate suspension of the execution of the act.

Based on an unofficial translation by the EWLU Team.

With thanks to Pierre Robert for highlighting this decision to the EWLU team.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. 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.                               

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