Belgium – Council of State finds that the Guardianship Service exceeded its authority by strictly taking into account age assessment results

Thursday, October 11, 2018

On 11 October, the Belgian Council of State ruled in a case concerning the determination of an applicant’s age on the basis of a medical assessment result.

Upon arrival in Belgium, the applicant was treated as an unaccompanied minor, as he stated that he was born in 2004. After the authorities were informed of the applicant’s registration in Spain as an adult, an age assessment procedure was initiated. The medical test concluded that the applicant was 16.8 years old with a margin of error of one year. Following this, the authorities decided that the applicant fulfilled all requirements to have a guardian appointed for him, noting, however, that the date of birth he declared could not be taken into account since it was below the lower end of the margin of error defined by the medical test. The applicant sought to annul the decision before the Council of State.

On admissibility, the Council dismissed the government’s argument that the applicant did not have a justiciable interest in annulling the contested act, as he was already recognised as a minor. It observed that the minor will stop benefiting from this status on an earlier date, related to the service’s determination of year of birth, rather than the applicant’s own statement. Therefore, the applicant had an interest in the annulment of the decision that implied a different year of birth.

Moving on to the merits of the case, the Council examined the government’s argument that the guardianship services were competent to disregard the applicant’s statement based on the medical results, focusing on Article 7 of the Guardianship Law and Article 3 of the relevant royal decree. It concluded that the service’s competence to identify minors does not extend to assigning a new date of birth, substituting the one declared by the minor. It further stressed that the medical assessment’s purpose is only to determine whether the person under assessment is under or above 18 years old. Disregarding the government’s claims that no substitution of date of birth can be inferred, the Council clarified that by not taking the applicant’s statement into account the authorities implied a fictitious date drawing from the medical test’s results. In doing so, they committed a manifest error of assessment and exceeded their competence regarding the identification of unaccompanied minors.

The decision was annulled to the extent that it stipulates that the applicant’s stated date of birth could not be taken into consideration.

Based on an unofficial translation by the ELENA Weekly Legal Update.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. 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. 



Medical Reports/Medico-legal Reports
Procedural guarantees
Unaccompanied minor