Belgium - Brussels Employment Tribunal rules that the procedure of appeals against a transfer decision to another EU Member State provided for in Belgian law is not in conformity with Dublin III

Date: 
Monday, November 3, 2014

In an appeal lodged against Fedasil refusing to extend material and reception aid to an applicant and her children following a return decision to Spain by the Immigration Office , the Brussels Employment Tribunal has held that Belgian law subscribing the procedure for appeals against transfers to another EU Member State is not in accordance with the Dublin III Regulation for two principal reasons.

Firstly, Belgian national law affords an appeal against a transfer decision in limited circumstances such as ultra vires acts. Accordingly, the Tribunal rules that this type of appeal does not comply with article 27 of Dublin III, requiring the appeal to be effective in fact and in law. Secondly, appeals against a transfer decision are not suspensive. A suspension of a decision by the Immigration Office can only come about where the situation is one of ‘extreme urgency’ (ie detention). This ‘extreme emergency’ procedure, submits the Tribunal, cannot amount to an automatic suspensive effect of appeals which is provided for in article 27.3 c) of Dublin III. In this regard the Tribunal notes the ECtHR’s recent case law (Josef v. Belgium, Application No. 70055/10, 27 February 2014) on the non-conformity of the Belgian ‘extremely urgent’ procedure with Article 13 of the ECHR (right to an effective remedy).

The Tribunal therefore rules that the appeal open to the applicant is not in conformity with Article 27.3 of Dublin III and that instead the decision made by the Office for refugees should be suspensive and that the applicant should continue to benefit from a place of residence as well as judicial assistance up until a decision has been made appealing the transfer decision to Spain.

The ELENA Weekly Legal Update would like to thank Franz Geleyn for notifying us of this judgment


31 October 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.                                                              

 

Keywords: 
Dublin Transfer
Material reception conditions
Right to remain pending a decision (Suspensive effect)
Tags: 
Belgium