Belgian Court of Cassation: Dublin III Regulation is applicable even without a new request for asylum

Wednesday, December 20, 2017

On 20 December 2017, the Belgian Court of Cassation reached its decision no. 9.17.1192.F which concerned a Sudanese national who was detained in Belgium pending his expulsion to Sudan, while the detention decision explicitly stated that the applicant had to be detained “in order to issue a take back request to Italy” (where he had previously lodged an asylum application). The Brussels Court of Appeal had followed the government’s argumentation that, in the absence of a new asylum application, the Dublin III Regulation was not applicable in relation to the detention of the asylum applicant.

The Belgian Court of Cassation disagreed with the Brussels Court of Appeal and ruled that, in accordance with Article 18(2) of the Dublin III Regulation, the responsible Member State must take back “an applicant whose application is under examination and who made an application in another Member State or who is on the territory of another Member State without a residence document”. Therefore, the Court of Cassation concluded, contrary to the government’s argumentation, that the provisions of the Dublin III Regulation are applicable even in cases where a new application for asylum has not been introduced in the requesting Member State, including the provisions regarding the detention of an asylum applicant who is subjected to a take charge or take back request.

Based on an unofficial translation by the ELENA Weekly Legal Update. We would like to thank Mieke Van den Broeck for bringing this case to our attention.

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.



Dublin Transfer
Request that charge be taken
Request to take back