Belgium: Council of State - assessment of asylum claims who have been granted refugee status in a third country

Date: 
Tuesday, May 23, 2017

The Belgian Council of State has ruled on a case concerning the assessment of asylum claims lodged by applicants who had been granted refugee status in a third country, where that country is no longer safe and cannot be considered a first country of asylum.
 
The case concerned a Rwandese couple of Hutu ethnicity who had been granted refugee status in Mozambique in 2007 but who fled to Belgium in 2012 and 2013 due to a fear of being persecuted in that country. After applying for asylum in Belgium without success, the applicants appealed before the Council for Alien Law Litigation (CALL). In its decision, CALL confirmed that Mozambique could not be considered a first country of asylum for the applicants, since there were not enough guarantees that they could be readmitted to that territory or that Mozambique respected the principle of non-refoulement. Therefore, it was relevant to assess the asylum claim with regard to the risk of persecution in Rwanda. According to CALL, a previous recognition as refugees by a third country (in casu, Mozambique) had to be taken into consideration when assessing their asylum applications.
 
The Office of the Commissioner General for Refugees and Stateless Persons (CGRA) appealed against this decision before the Council of State, mainly on the basis that CALL had erred in law as there was no obligation under national or international law to automatically grant refugee status based on the recognition as a refugee by another country. In CGRA’s opinion, the asylum authorities had to assess the asylum application without paying regard to the recognition by another State Party to the 1951 Refugee Convention.
 
While concurring that there was no obligation to automatically grant a refugee status based solely on recognition as a refugee by another country, the Council of State concluded, based on UNHCR Comment No 12 on the Extraterritorial Effect of the Determination of Refugee Status, that when the fear of persecution has already been examined and taken into consideration by another signatory of the 1951 Refugee Convention, a State where a new asylum claim has been lodged must verify, in line with the causes for cessation of international protection, whether that fear is still actual and well-founded. In the case in question, CALL had rightfully considered that, in the absence of elements to justify a cessation of the protection granted by the other signatory, it was pertinent to give the applicant’s the benefit of the doubt and to judge their fear of persecution well-founded. Therefore, the Council of State rejected the appeal and confirmed CALL’s decision.

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



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Keywords: 
First country of asylum
Persecution (acts of)
Persecution Grounds/Reasons
Refugee Status