Belgium: Constitutional Court clarifies and annuls provisions of asylum legislation

Thursday, February 25, 2021

On 25 February 2021, the Belgian Constitutional Court (GwH) clarified and annulled a number of provisions of the recently amended asylum legislation. The action was brought by a number of interested organisations and NGOs.

It was argued that Article 34 of the legislation did not exclude the criminal prosecution of recognised refugees for their irregular entry into Belgian territory. The Constitutional Court pointed to Article 31 of the Geneva Convention and the former Article 53 of said legislation and clarified that the amending Article 34 also does not allow recognised refugees to be prosecuted on the basis of their irregular entry or stay.
The Court considered that Article 48/6 of the Aliens Act, which sets out the obligation for international protection applicants to deposit their original identity documents, constituted an interference in the right to privacy and as such annulled the provision. It was considered that while the  provision pursues a legitimate aim, it was disproportionate for applicants to be deprived of their identity documents for the entire duration of the procedure. The Court stipulated that documents may not be held for longer than the period strictly necessary for an investigation by the Office of the Commissioner General for Aliens and Stateless Persons (CGRS).
In relation to the arguments of unconstitutionality regarding detention at the border, the Court rejected the claims and stated that detention takes place not merely because the applicant for international protection has submitted a request, but also to allow authorities carry out an initial investigation of the application before admission to the territory.
In regard to detention if there is a ‘risk of absconding,’ the Court ruled that the definition is sufficiently delimited and as a result, the fear of arbitrary detention cannot be justified.
Moreover, the Court confirmed the legality of the shortened appeal period for international protection applicants from fifteen to ten days, noting that applicants can enjoy the assistance of a lawyer from the moment a request is submitted. In relation to a third country national who has received a deportation decision, the Constitutional Court confirmed that the persons in those circumstances can bring an action against the order that has a suspensive effect, in the event of urgent necessity. It noted, however, that Article 39/7 of the Aliens Act will deny a suspensive legal remedy to applicants who submit a subsequent request in the year after the rejection of the first request.
On the basis of the complaints before it, the Court provided seven nullifications and seven clarifications on various provisions of the legislation overall.
Based on an unofficial translation by the EWLU team.

This item was reproduced with the permission of ECRE from the ELENA Weekly 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.