The Right to an Effective Remedy in Accelerated Asylum Procedures – The Belgian Constitutional Court Stands Against the Reduction of Judicial Oversight

A. Introduction

In its decision 1/2014 of 16 January 2014, the Constitutional Court of Belgium annulled the law of 15 March 2012 that implemented provisions of the Asylum Procedures Directive 2005/85/EC concerning asylum seekers from ‘safe countries of origin’ in Belgian law.

According to that law, asylum seekers originating from countries listed as safe by Royal Decree can only appeal against decisions rejecting their application through the ‘annulment procedure’. In contrast to the ‘full judicial oversight procedure’ to which every other asylum seeker is entitled, the ‘annulment procedure’ limits the judicial oversight to an ex tunc assessment and does not automatically stay the execution of the appealed decision. The stay of the execution must be requested through the ‘extremely urgent procedure’.

The challenge against that legislative reform was brought by various NGOs which contended that applying the ‘annulment procedure’ to asylum seekers from ‘safe countries of origin’ amounts to a discrimination prohibited by the Belgian Constitution.

B. The judgment of the Belgian Constitutional Court

The Constitutional Court reasoned in two steps. (1) It clarified the content of the right to an effective remedy under ECHR law before (2) turning to the examination of the conformity of the contested law with the prohibition of discrimination enshrined in the Belgian Constitution.

1. An effective remedy in the sense of Article 13 ECHR implies an ex nunc assessment and the stay of execution of the contested decision

Noting that the ‘annulment procedure’ does not stay the execution of the negative decision nor obliges the judge to take into account elements unknown by the administration when it adopted the negative decision, the Constitutional Court judged that it does not constitute in itself an effective remedy in the sense of Article 13 ECHR.

As the ECtHR recalled in Singh v. Belgium, ‘even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so’ (at para 99). The Constitutional Court therefore analysed whether the ‘extremely urgent procedure’ by which asylum seekers can request the stay of the execution of a negative decision pending the outcome of the ‘annulment procedure’, makes the ‘annulment procedure’ compatible with Article 13 ECHR.

For two reasons, the ‘extremely urgent procedure’ does not respect the asylum seeker’s right to an effective remedy. First, the request for a stay of execution must be made within five days of the notification of the negative decision. Second, while examining that request, judges are not required to take into account elements unknown by the administration at the time the negative decision was adopted.

Belgian asylum judges have adapted their jurisprudence since the condemnation of Belgium by the ECtHR in M.S.S. v. Belgium and Greece. They now accept as admissible requests for a stay of execution that were introduced after the five days’ time limit but within thirty days of the notification of the negative decision (see cases 56201 to 56208 of 17 February 2011). When a violation of Article 3 ECHR is invoked, they agree to take into account elements that were unknown by the administration (see the study of the Belgian Refugee Council at p. 38 and jurisprudence cited therein). This mere jurisprudential practice does not however ‘guarantee’ the right to an effective remedy as required by the ECtHR in Conka v. Belgium (at para. 75). In the Belgian civil law system, indeed, a jurisprudential practice does not constitute a legal obligation; a judge may legally diverge from the general jurisprudential practice (see for instance case n°96579 of 4 February 2013 and subsequent comments) or the administration may legally decide to expel the asylum seeker whose request for a stay of execution was made after the five days’ time limit.

The Constitutional Court therefore concluded that neither the ‘annulment procedure’ nor the ‘extremely urgent procedure’ taken in isolation or together constitute effective remedies in the sense of Article 13 ECHR.

2. EU Law does not allow accelerated procedures to violate an asylum seeker’s right to an effective remedy

Under Belgian Constitutional law, not just any differential treatment amounts to a violation of the prohibition of discrimination. Such violation only occurs when the differential treatment is not reasonably justified because it does not rest on (a) objective and/or (b) relevant criteria and/or (c) because it is not proportionate to a legitimate objective.

(a) The different treatment of asylum seekers coming from ‘safe countries of origin’ derives from the nationality of the asylum seeker. In H.I.D. and B.A., the CJEU stated that ‘the nationality of the applicant for asylum is an element which may be taken into consideration to justify the accelerated or accelerated processing of an asylum application’ (at para 73). The Constitutional Court concluded that the nationality of the asylum seeker is an objective criterion that does not open the way to arbitrary treatment.

(b) The Constitutional Court further noted that the H.I.D. and B.A. case also emphasised that accelerated procedures must respect the basic principles and fundamental guarantees enshrined in the Asylum Procedures Directive and the EU Charter of Fundamental Rights. Amongst these guarantees is the right to an effective remedy which is provided for in Article 39 of the Asylum Procedures Directive and Article 47 of the EU Charter of Fundamental Rights ‘by reference’ to the ECHR. Therefore, the nationality of some asylum seekers is not a relevant criterion to distinguish between those who enjoy that right and those who do not; every asylum seeker is entitled to an effective remedy.

(c) The Constitutional Court finally underlined that, in order to fulfil the legitimate objective of treating asylum applications from ‘safe countries of origin’ more swiftly, the Belgian legislator could have diminished the time limit for making an appeal using the ‘full judicial oversight procedure’. Hence, the infringement on the right to an effective remedy is not a proportionate measure.

For all these reasons, the Constitutional Court annulled the law that restricted the judicial remedy available to asylum seekers from ‘safe countries of origin’ to the ‘annulment procedure’ and the ‘extremely urgent procedure’.

C. Comments

(1) While dealing with Belgian Constitutional law, the Constitutional Court contributes to a better understanding of the right to an effective remedy consecrated by both ECHR and EU law. (2) It also clarifies which limits national legislators must respect while setting-up accelerated procedures.

1. The Constitutional Court clarifies the content of the right to an effective remedy in line with the recast Asylum Procedures Directive

The Constitutional Court underlined two conditions for a remedy to be effective. First, the Court or the Tribunal must perform a full and ex nunc assessment of the appealed decision. It must take into account all elements, including those that were unknown by the administration. Second, the execution of the negative decision must be stayed pending the examination of the appeal. Those two requirements reflect ECtHR’s and CJEU’s jurisprudence on the right to an effective remedy. They are also included in Article 46 of the recast Asylum Procedures Directive 2013/32/EU.

Firstly, the ECtHR underlined in Salah Sheekh v. The Netherlands that ‘[…] in assessing an alleged risk of treatment contrary to Article 3 in respect of aliens facing expulsion or extradition, a full and ex nunc assessment is called for as the situation in a country of destination may change in the course of time’ (at para. 136; emphasis added). Although this consideration concerned procedural obligations under Article 3 ECHR, and not Article 13 ECHR, there is no reason why the obligation to perform an ex nunc assessment shall only apply at first-instance and not at appeal (see M.S.S. at para. 389). Moreover, in H.I.D. and B.A., the CJEU took into account the ‘broad discretion’ of the Irish Refugee Appeals Tribunal, which ‘takes cognisance of both questions of fact and questions of law’, to consider that it is a ‘judge’ in the sense required by the right to an effective remedy (at para. 93). Article 46(3) of the recast Asylum Procedures Directive also requires ‘a full and ex nunc examination of both facts and points of law’.

Secondly, the ECtHR stated in M.S.S. that ‘the requirement flowing from Article 13 that execution of the impugned measure be stayed cannot be considered as a subsidiary measure’ (at para. 388). Articles 46(4) and 46(5) of the recast Asylum Procedures Directive also oblige Member States to automatically stay the execution of the negative decision for a reasonable time-limit during which the asylum seeker can introduce an appeal and, if an appeal is introduced, pending its examination.

Article 46(6) of the recast however allows Member States to provide for exceptions to the automatic suspensive effect of the appeal in various accelerated procedures, including the procedure for asylum seekers from ‘safe countries of origin’. In such procedures, asylum seekers may have to request the stay of execution of the negative decision. But, when applied at the border, these accelerated procedures must respect the conditions set out in Article 46(7). According to that article, Member States must provide legal and linguistic assistance and stay the expulsion for at least one week. The judge must also review the negative decision in terms of fact and law while examining the request for staying the execution. The conditions of Article 46(7) seem very much inspired by the ECtHR’s ruling in I.M. v. France where France was condemned for a violation of the right to an effective remedy because the Applicant, whose asylum request was examined at the border following an accelerated procedure, lacked the practical opportunity to sustain his case with evidence and legal arguments; he had only 48 hours to introduce an appeal with suspensive effect while being detained and having no access to linguistic and legal assistance. In H.I.D. and B.A., the CJEU followed the same line of analysis by emphasising that asylum seekers ‘must enjoy a sufficient period of time within which to gather and present the necessary material in support of their application’ (at para. 75).

2. The Constitutional Court clarifies the fundamental guarantees that accelerated procedures have to respect

In H.I.D. and B.A., the CJEU considered that accelerated procedures are not by themselves contrary to EU law for ‘the importance of expediency in processing asylum applications is, as appears from recital 11 in the preamble to the [asylum procedures] directive, shared both by Member States and by applicants for asylum’ (at para. 60) and that Member States enjoy discretion when organising such accelerated procedures (at para. 62). However, fundamental principles of EU law must also be respected.

In a previous judgement 107/2013 of 18 July 2013, the Belgian Constitutional Court considered that it was not discriminatory to submit asylum seekers from ‘safe countries of origin’ to an accelerated procedure as long as the particular vulnerabilities of unaccompanied minors are still taken into account. It validated the law that gives fifteen days to the administration to refuse to take into consideration an asylum application submitted by an asylum seeker originating from a country listed as ‘safe’ by Royal Decree if that asylum seeker does not ‘clearly’ establish that his/her asylum application is well-founded.

In judgment 1/2014 of 16 January 2014, the Belgian Constitutional Court considered that the Legislator went too far when deciding to restrict judicial oversight, in violation of the right to an effective remedy. This makes perfect sense in light of the ECtHR’s jurisprudence. In every area of Belgian immigration’s law where the ‘annulment procedure’ and ‘extremely urgent procedure’ were applied to decisions involving Article 3 ECHR, the ECtHR condemned Belgium for a violation of the right to an effective remedy (see M.S.S. regarding Dublin transfers and Yoh-Ekale Mwanje regarding the granting of a residence permit for seriously ill foreigners).

The line not to cross is clear. Accelerated procedures can be put in place, but not at the expense of judicial oversight for judges stand as ultimate guardians of the asylum procedure’s fairness.

D. Conclusion

The Belgian Constitutional Court provides some useful guidelines in the difficult search for a quick asylum procedure that remains fair. Although some differential treatment between asylum seekers is allowed with a view to treating asylum applications more swiftly, such differential treatment cannot affect the substance of the right to an effective remedy. The right to an effective remedy requires a full examination by a judge, which implies taking into account all relevant elements of fact and law as well as a stay of execution of the negative decision.

As the CJEU stated in H.I.D. and B.A., accelerated procedures cannot affect the fundamental guarantees to which any asylum seeker is entitled. The Belgian Constitutional Court recalls that the right to an effective remedy is one of these fundamental guarantees without which the swiftness of the asylum procedure would undermine its fairness.

Luc Leboeuf

PhD Candidate and Research Assistant at the Université catholique de Louvain (Belgium)

03 March 2014