M.A. v. Belgium: Removal of a Sudanese national violates Article 3 and 13 ECHR

On 27 October 2020, the ECtHR delivered a ruling in M.A v Belgium (application no. 19656/18).
 
The applicant, MA, had entered Belgium unlawfully and, in August 2017, received an order to leave the country. Pending his removal, he was transferred to a migrant detention centre, where he submitted an asylum application. Shortly afterwards, he discovered that the Belgian authorities were working with the Sudanese authorities to identify and return Sudanese nationals who had unlawfully entered Belgium. As a consequence, and because he did not have a lawyer, MA withdrew his application. That same month, he attended a meeting with members of the Sudanese embassy and identification mission, after which he received a travel permit to return to Sudan.

On 30 September 2017, after having consulted a lawyer, MA requested to be released from detention at a Leuven First Instance Court. However, two weeks later, and before this request was examined, the Belgian authorities warned him that he would have to board a flight to Sudan. Simultaneously, a First Instance Judge ruled against deporting the applicant before the Leuven First Instance Court had ruled on the custodial measure. While the Belgian authorities cancelled the deportation, they nonetheless brought MA to the airport. There, he allegedly met a man in uniform who explained him that he would be sedated if he refused to board the plane and that further attempts to remove him would be organized. Finally, MA signed a statement authorizing his departure.
 
The ECtHR underlined that the country of origin information at that time clearly reflected a problematic general human rights situation in Sudan and, therefore, concluded that the Belgian authorities could not have ruled out a real risk of treatment contrary to Article 3 of the ECHR for MA. The Court reiterated that, while it is in principle for the applicant to adduce evidence that can prove that there are substantial grounds for believing that he will be subjected to treatment contrary to Article 3, it is for the government to dispel any doubts when the applicant provides such evidence. In addition, the Court underlined that the assessment of an Article 3 violation should take into account the practical difficulties an applicant encounters in pursuing his application and his specific vulnerability as an asylum applicant. In that respect, the Court noted that MA did not consult a lawyer during the first week of his detention and that he was not granted access to an interpreter when he was interviewed at the detention centre. These issues, together with the fact that the Belgian authorities had only asked MA very general questions about the risks that he might face and the circumstances of his interview, led the Court to conclude that the authorities had not carried out a sufficient  assessment of the risks faced by the applicant under Article 3.
 
Regarding Article 13 ECHR, taken together with Article 3, the Court held that the applicant did not leave Belgium voluntarily. Furthermore, it concluded that, in view of the speed with which he was expelled and taking into account that a judge had prohibited MA’s removal pending court proceedings, the Belgian authorities had failed to suspend the measure in compliance with a court decision, thereby rendering MA’s successful appeal ineffective. Therefore, it concluded that there had been a violation of Article 13, read together with Article 3 ECHR.
 
Based on an unofficial translation by the EWLU team.

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