Asylum

 

The Federal Public Service Foreign Affairs is not directly responsible for dealing with asylum applications. The granting of refugee status falls within the competence of the FPS Home Affairs and, more specifically, of the Office for Foreigners (OE, “Office des étrangers”) and the Commissioner-General for Refugees and Stateless Persons (CGRA, “Commissariat général pour les Réfugiés et les Apatrides”).

 

The asylum procedure

 

LEGAL FRAMEWORK

The Convention relating to the Status of Refugees (hereafter: Refugee Convention), which was signed in Geneva on 28 July 1951, is the key document for granting refugee status. Belgian legislation explicitly refers to this Convention.

On 10 October 2006, to complement the Refugee Convention, subsidiary protection was introduced in Belgian law.

The asylum procedure and the competence of the asylum authorities are defined in the law of 15 December 1980 relating to the access to the territory, residence, establishment and removal of foreigners (the “Aliens Act”), modified by the law of 15 September 2006.

THE ASYLUM AUTHORITIES

The following authorities are involved in the asylum procedure:  the Immigration Department (OE/DVZ), the Office of the Commissioner General for Refugees and Stateless Persons (CGRS/CGRA/CGVS) and the Council for Alien Law Litigation (CCE/RvV).

The Council of State acts as a court of last resort.

The UNHCR representative in Belgium has an advisory role and can intervene at any stage of the asylum procedure.

1. THE IMMIGRATION DEPARTMENT (OE/DVZ)

A foreigner who wishes to seek asylum in Belgium has to file an asylum application with the Immigration Department. This can be done either on arrival at the border or within eight working days after arriving in Belgium, at the OE’s office, in a closed centre or in prison. The OE then registers the asylum application and the statement of the foreigner concerning his or her identity, origin and travel route. The language in which the asylum procedure will take place (French or Dutch) is determined at the moment of registration and an interpreter will assist the applicant if need be.

The OE officer will complete a questionnaire with the asylum applicant. Questions relate to the reasons for applying for asylum and to the applicant’s possibilities to return to the country he or she has fled. At a later stage in the asylum procedure, this questionnaire will serve as a basis for the interview at the CGRS.

The OE is also competent to determine the EU Member State (+ Norway and Iceland) responsible for processing the asylum application.

If his or her request to be granted asylum is rejected, the applicant can file a new application but the OE will only consider it when it contains new elements that are relevant.

The OE is also competent to maintain the asylum applicant in a closed centre and to deliver orders to leave Belgium.

2.  THE OFFICE OF THE COMMISSIONER GENERAL FOR REFUGEES AND STATELESS PERSONS (CGRS/CGRA/CGVS)

The CGRS is an independent authority and the central asylum authority in Belgium. As such, it is the only Belgian authority with investigative powers in the matter of asylum.

The CGRS is competent to grant or deny refugee status or subsidiary protection status. In order to do so, it assesses all asylum applications on an individual basis, first in the light of the Refugee Convention and then regarding subsidiary protection.

If the application falls within the criteria of the Refugee Convention, the applicant will be recognised as a refugee. If he or she cannot be recognised but still runs a real risk of serious harm in his or her country of origin, subsidiary protection will be granted. If neither status applies, the Commissioner General takes a decision of refusal to grant international protection.

In each dossier, the CGRS takes a decision to grant or refuse international protection (refugee status or subsidiary protection). To dispute this decision, an appeal has to be lodged with the Council for Alien Law Litigation.

When a national from a EU member state or candidate state applies for asylum in Belgium, the CGRS can decide not to take the application into account if it does not appear clearly from the applicant’s statement that he or she has a well-founded fear of persecution or runs a real risk of serious harm. In this case, the decision has to be taken within five working days.

3. THE COUNCIL FOR ALIEN LAW LITIGATION (CCE/RvV)

Except for EU nationals, asylum applicants who receive a negative decision form the CGRS can appeal against this decision before the Council of Alien Law Litigation (CCE). This appeal suspends the decision’s effects. The CCE will then confirm the decision (refusal) or reverse it (granting the status previously refused). As an appellate body, the CCE has thus the power to grant or refuse international protection. The CCE can also annul a decision of the Commissioner General when it contains substantial irregularities which cannot be redressed or lacks essential information to the effect that the CCE cannot reach a decision without further investigation. As the CCE does not have any investigative power, the CGRS will have to re-examine the application in case of an annulment and to take a new decision.

Appeals have to be lodged before the Council within thirty days after notification of the CGRS’s decision. The competent Minister can lodge an appeal, also within 30 days, against a decision of the CGRS to grant refugee status or subsidiary protection status.

The CCE has also the power to annul a decision of the CGRS regarding a national from a EU member state or candidate state. Annulment has to be requested within thirty days after notification of the decision (appeal for annulment).

When an appeal is lodged, the disputed decision is suspended and the asylum applicant cannot be removed before the CCE decides on the case.

A decision of the CCE can only be appealed against before the Council of State in a cassation procedure with a special filtering mechanism. Each cassation appeal is examined as to its admissibility. If the Council of State considers itself without competence or without power of jurisdiction in the matter or if the cassation appeal is found to be without cause or obviously irrelevant, the appeal is declared “inadmissible”. A cassation appeal has to be filed within 30 days following notification of the CCE’s decision.

REFUGEE STATUS

Refugee status is granted to foreigners who meet the conditions of article 1 of the Refugee Convention (1), where a refugee is defined as “any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country“.

SUBSIDIARY PROTECTION STATUS

Subsidiary protection status is granted to any foreigner “who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm (…), and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country, provided that he or she does not fall under one of the exclusion clauses defined in article 55/4” (2).

This definition contains the following elements:

- no medical grounds (article 9ter of the Aliens Act) (3);
- substantial grounds
- real risk
- serious harm.

Serious harm consists of:

- death penalty or execution
- torture or inhuman or degrading treatment or punishment of an applicant in the country of origin;
- serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict (4).

The number of persons receiving subsidiary protection is lower than the number of those receiving refugee status. The explanation is that the asylum authorities in Belgium give priority to recognition as a refugee and use a fairly wide definition of who qualifies as a refugee. In a certain number of cases where subsidiary protection would be granted in another country, Belgium grants refugee status instead.

Regarding subsidiary protection, situations defined in a) and b) are rarely met. When this is the case, the situation requires refugee status to be considered or, in some cases, exclusion from refugee status (when there are serious reasons to consider that the person concerned was involved in crimes against humanity or serious non-political crimes). Subsidiary protection is mostly granted when there is a situation presenting a real risk of indiscriminate violence resulting from an armed conflict, i.e. a serious threat as defined under point c).

 

(1) Article 48/3, § 1 of the Aliens Act
(2) Article 48/4, § 1 of the Aliens Act
(3) For medical grounds to be assessed, permission to stay has to be requested from the Minister or his/her delegate.
(4) Article 48/4, § 2 of the Aliens Act.