Belgium - Council for Alien Law Litigation, 21 September 2012, No. 87989

Country of Decision:
Country of Applicant:
Date of Decision:
21-09-2012
Citation:
No. 87989
Court Name:
Council for Alien Law Litigation (CALL)
National / Other Legislative Provisions:
Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Artikle 48/4
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Headnote: 

The CGRS (Office of the Commissioner-General for Refugees and Stateless Persons) may not dispute the nationality of an asylum seeker without taking into account the official documents that he has filed.

Facts: 

The Applicant, who claimed to be Somali, had supposedly lived for several years in a refugee camp in Kenya. He maintained that he had returned to Somalia but was then forced to flee from there a second time due to persecution by Al-Shabab militants.

The CGRS found the Applicant’s account of the persecution suffered when he allegedly returned to Somalia to be inconsistent. Consequently, it did not believe that the Applicant was of Somali nationality. It therefore analysed the application in relation to the Applicant’s country of habitual residence, Kenya. It concluded that the Applicant did not have a well-founded fear of persecution in Kenya and rejected his claim.

Decision & Reasoning: 

The judge criticised the CGRS for not ‘actually’ disputing the Applicant’s Somali nationality. It found in particular that the CGRS had not taken into account evidence of the Applicant’s registration in a camp for Somali refugees in Kenya. Such evidence could constitute an ‘indication’ of the Applicant’s Somali nationality.

The judge therefore quashed the CGRS’s decision. He required the CGRS to take further investigative measures to establish whether or not the Applicant was of Somali nationality, noting that if the Applicant was indeed Somali, it would be necessary to examine the risk of him suffering indiscriminate violence in Somalia.

Outcome: 

Quashed and sent back to the CGRS.

Observations/Comments: 

In this judgment, the CALL required the CGRS to take into account evidence of registration in a refugee camp issued by the NGO responsible for the camp.

In so doing, the CALL anticipated the ECtHR’s decision in Singh (33210/11), which criticised the Belgian authorities for disputing the Applicants’ nationalities without taking account of a UNHCR attestation.

A ‘first country of asylum’ ground of inadmissibility was not in force under Belgian law at the time this judgment was delivered. It is in force now (Article 48/5, Section 4 of the Law of 15 December 1980, as modified by the Law of 8 May 2013). However, the judgment is still relevant, since the examination to be carried out in relation to a first country of asylum differs from that to be carried out in relation to a country of nationality (for example, regarding the possibility of readmission into the first country of asylum).

Case Law Cited: 

Belgium - Council for Alien Law Litigation, 21 October 2010, No. 49912