Communicated cases against Belgium

Friday, February 5, 2021

N.R. v Belgium (application no. 63620/19) concerns the case of an Afghan national who fled Afghanistan because of problems with the Taliban in his family. He is currently unlawfully staying in Belgium after the Belgian authorities rejected his application for international protection on the basis of (i) his subsidiary protection status in Italy, (ii) a lack of persecution risk in Afghanistan and (iii) the existence of an internal flight alternative in Afghanistan. Belgian courts either rejected his appeals or declared them inadmissible.

Additionally, the applicant applied to regularise his stay for medical reasons, as he suffers mental health problems, but saw his application rejected. After an unsuccessful appeal before the Council of Alien Law Litigation, the applicant is awaiting the decision of a Cassation appeal.

Before the European Court of Human Rights, the applicant complains under Article 3 and 13 ECHR, that the Belgian authorities did not conduct a rigorous and ex nunc review of his application for international protection: they did not examine the need for protection that resulted from his subsidiary protection status in Italy, nor did they take his mental health status into account when examining the existence of an internal flight alternative in Afghanistan. Indeed, the Belgian authorities rejected his medical certificates and disregarded the UNHCR Guidelines because his story lacked credibility.

In this context, the ECtHR asks the parties which legal framework constitutes the basis for the removal and whether, within this framework, it is possible to establish whether the applicant enjoys a valid residence permit in Italy. If the applicant cannot establish the latter fact, the Court asks whether the Belgian authorities have evaluated the fears of the applicant regarding his possible return to Afghanistan, as required by Article 3 ECHR. Finally, the ECtHR asks to what extent the existence of two separate procedures under Belgian law, one regarding the asylum proceedings and the other regarding the possible obstacles to removal based on health issues, prevents the authorities from carrying out, before any removal decision, a full and ex nunc examination of the risks the applicant incurs, in particular because of his state of health, in light of Article 3 ECHR.

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.                               

Assessment of facts and circumstances
Effective remedy (right to)
Inhuman or degrading treatment or punishment