Application of the Dublin criteria
There is no information available on how the AO applies the Dublin criteria. The Aliens Act uses the term “European regulation” where it refers to the criteria in the Dublin III Regulation for determining the responsible Member State.1
The dependent persons and discretionary clauses
The “sovereignty clause” (Article 17(1) Dublin III Regulation) is mentioned in Article 51/5(2) of the Aliens Act, but the “protection clause” (Article 3(2)) and “humanitarian clause” (Article 17(2)) are not. Both clauses are sometimes applied in practice but this is not done systematically. The criteria for applying the clauses are very unclear and no specific statistics are available on their use. Since the MSS v Belgium and Greece judgment of the ECtHR, detention and reception conditions, guarantees in the asylum procedure and access to an effective remedy in the responsible state seem to be taken into consideration in some cases when deciding whether or not to apply the (former) sovereignty clause, now “protection clause”.
Until mid-2016 there were in principle no requests made to Greece at all, although 3 outgoing requests and 2 transfers took place to Greece in 2014.2 In the fall of 2016 the Aliens Office experimented with a couple of test cases to Greece. In the end they suspended this test.3 Also with regard to some Dublin transfers to other EU Member States the AO has accepted to apply the sovereignty clause in individual cases (Poland, Malta, Italy, Hungary and Spain in specific cases of vulnerability or other). At the moment there are no transfers to Hungary. The Dublin examination will take place but Belgium will appoint itself as the responsible Member State.4
Following the judgment of the CJEU in K on the interpretation of the humanitarian clause,5 the AO at first accepted to collaborate actively to take charge of adult family members of unaccompanied asylum seeking children in Belgium under the family reunification provisions of the Dublin Regulation, who were still in Greece but for whom the Greek asylum authorities had not yet made a request to Belgium to take charge of the family members concerned. However, the AO now refuses a generalised application of this practice, claiming a more strict interpretation of K and applying it only in case the humanitarian clause applies, and not under the Dublin provisions concerning the criteria for unaccompanied children. This is done in order to avoid triggering possible abuses such as trafficking of children.
In practice, all asylum seekers are fingerprinted and checked in the Eurodac database after lodging their asylum application with the AO.6 In case they refuse, the law allows for them to be detained.7
Systematically, the AO first determines which EU state is responsible for examining the asylum application based on the criteria of the Dublin III Regulation. This is a preliminary procedure to decide whether or not the file must be transferred to the CGRS.
The asylum seeker has to attend a specific Dublin interview. During the interview the AO will ask about:
The identity and country of the asylum seeker
The route taken to Belgium
Problems in the country of origin. The AO uses a specific form with standard questions. This questionnaire is very important, as it will form the basis of the second interview at the Commissioner-General for Refugees and Stateless Persons.
Submitting the applicant’s documents.
During this interview asylum seekers can state their reasons for opposing a transfer to the responsible EU state.8 When a request to take back or take charge of an asylum seeker is being sent to another state, this is mentioned on the document provided to the asylum seeker as proof of registration of the asylum application (the so-called “Annex 26”).
The asylum seeker should specifically ask for a copy of the questionnaire at the end of the interview. Otherwise the lawyer will have to request a copy at the AO’s. Practitioners have stated that it can take up to month or longer before they receive a copy of the questionnaire, which is often too late for the appeal or to prepare the interview at the CGRS.9
A decision to transfer following a tacit or explicit agreement to take back or to take charge of an asylum applicant is delivered in a written decision containing the reasons for the decision in person (the so-called “Annex 26quater” – or “Annex 25quater” when in detention). However, the asylum seeker’s lawyer does not automatically receive a copy of the decision sent to the asylum seeker.10
In case Belgium is the responsible state, the asylum seeker’s file is transferred to the CGRS, and this is mentioned also on the registration proof of the asylum application.11
Following the 2014 ECtHR ruling in Tarakhel v Switzerland,12 the AO started to systematically demand individualised guarantees in case of transfer requests to Italy of families with children, concerning specific accommodation, material reception conditions and family unity.13 The AO does not systematically do so for other vulnerable asylum applicants, nor in case of transfers to other Dublin States.
The CALL has however overruled this AO practice in some cases, without this having a generalised effect on its practice. By way of example, in 2015 some decisions by the AO to transfer an asylum seeker in need of medical or psychological aid to Spain or Italy have been suspended by the CALL because no individualised guarantees had been demanded beforehand concerning the possibility to reintroduce an asylum applications and reception conditions adapted to their particularly vulnerable situation.14
In a ruling of April 2015, the CALL held that a simple mention by the AO to the effect that the receiving authorities had indicated that the applicant would be placed “under an ERF project” did not discharge the duty to obtain individualised guarantees before the transfer.15 In another judgment of April 2015, the CALL also clarified that, where the receiving authorities have not responded to a request within the requisite time-limits, the AO has not fulfilled its duty to obtain guarantees.16
In a ruling of October 2016, the CALL annulled the transfer decision under the Dublin III Regulation of an asylum seeker and her five minor children to Germany. The Aliens Office did not sufficiently take into account the best interests of the children, and the reception guarantees necessary to transfer the Afghan asylum seeker with her children to Germany, without a real risk of violating Article 3 ECHR.17
Persons whose claims are considered to be Dublin cases may in certain cases be detained (see section on Grounds for Detention). As a reaction to the increase of asylum applications from persons having transited through other Member States in August 2015, more asylum seekers seem to be detained since September 2015 even before any transfer agreement has been reached. After some decisions by the Council Chambers to release such persons because the applicability of the Dublin Regulation in itself is not a sufficient ground for detention, the AO has taken a step back and this practice has become less frequent. It concerned particularly Iraqi asylum seekers who were detained solely because they were in a Dublin procedure. The Commissioner for Human Rights of the Council of Europe expressed his concern and called on the authorities to review this practice, especially in cases in which no country had yet been identified to which the asylum seeker could be transferred. 18
Once the maximum time-limit under the Dublin Regulation for executing the transfer has passed (which is prolonged in case the persons did not have a known address with the AO), Belgium's responsibility for examining the asylum application will be accepted when the persons concerned presents themselves to the AO again.
If the asylum seeker continues to be at the disposal of the AO for the execution of the transfer, in theory Belgium becomes responsible for their asylum application after 6 months. In practice, the AO systematically contacts the services in the reception centre where the asylum seeker resides and considers them to be absconding if they have not left an address. Once they leave the centre, the AO expects them to register at the commune in the so called “waiting register”. This is a legal fiction, since communes will not assist rejected asylum seekers through this otherwise useless demarche. If the asylum seeker then does not appear in front of the AO when requested for whatever reason, then Belgian responsibility will only be accepted after 18 months, on the basis that the applicant has absconded.19
The average processing time between the asylum application and the delivery of a decision refusing entry (at the border) or residence on the territory based on the Dublin Regulation is not communicated by the AO, but can vary greatly depending on the number of pending cases at the Dublin Office and the Member State the AO wants to transfer a person to.
The delay from the acceptance of a request until the actual transfer is not known because the AO does not and cannot keep statistics relating to asylum seekers returning or going to the responsible State on a voluntary basis or on Dublin transfer decisions that are not executed in practice.
In 2015, the AO took 1,465 decisions of refusal of entry under the Dublin III Regulation (whereas 22.108 files were transmitted to the CGRS for in-merit examination). In 2014 it concerned 991 decisions of refusal (6% of the total) and 1,169 in 2013 (7% of the total). For 2016 no numbers on outgoing or incoming requests have been communicated yet, nor are numbers on actual transfers. There were 828 actual transfers to other Member States in 2015, an increase from 741 in 2014 and 738 in 2013.20
Asylum seekers have to attend a specific Dublin interview in which they can state their reasons for opposing a transfer to the responsible EU state.21 Lawyers are not allowed to be present at any procedure at the AO, including the Dublin interview. They can nevertheless intervene by sending information on the reception conditions and the asylum procedure in the responsible state or with regard to individual circumstances of vulnerability or other.22 This is important since the CALL has repeatedly demanded from the AO that it responds to all arguments put forward and all information submitted.
As a consequence of the MSS v Belgium and Greece judgment, the AO has accepted to add some more specific questions to the questionnaire. It concerns elements that are relevant for determining if the sovereignty clause should be applied to avoid potential inhuman treatment of the person concerned, in case of transfer to another responsible EU or Schengen Associated state. The asylum seekers are asked why they cannot or do not want to return to that specific country, whether they have a specific medical condition and why they have come to Belgium.
Since the Tarakhel judgment, he or she is asked more specifically whether there are reasons related to the reception conditions and the treatment he or she underwent why he or she opposes a transfer to that Member State. However, no questions are asked specifically as to what the detention conditions, the asylum procedure and the access to an effective remedy are like in the responsible state. This is for the asylum seeker to invoke and they have to prove that such general circumstances will apply in their individual situation or that they belong to a group that systematically undergoes inhuman treatment.
When the AO accepts that Belgium is responsible for the asylum claim, it will transfer the file to the CGRS. However, the decision why Belgium is responsible is not motivated. The AO has not been very transparent about its application of the sovereignty clause neither Therefore it is hard to assess the impact of the additional questions in the Dublin interview.
Since June 2016 the CGRS started to conduct interviews through videoconference in some of the detention centres. This is the case for the detention centre of Merksplas where all persons who applied for asylum are interviewed through video conference.
The appeal procedure provided for against a Dublin transfer i.e. a decision of “refusal of entry or residence on the territory” is a non-suspensive annulment procedure before the CALL, rather than a “full jurisdiction” procedure (see section on Regular Procedure: Appeal). Dublin transfers decisions may be appealed within 30 days.
Since applications for which Belgium is not responsible are subject to a “refusal of entry or residence” decision by the AO and are not examined on the merits, the rules discussed in the section on the Admissibility Procedure apply. It is exactly this appeal procedure that was considered by the ECtHR not to be an effective remedy in M.S.S. v. Belgium and Greece. However, under the “extreme urgency” procedure, an appeal with short automatic suspensive effect may be provided (see section on Admissibility Procedure: Appeal).
The CALL verifies if all substantial formalities have been respected by the AO.23 In 2016 this has included cases where the AO ordered a Dublin transfer without indicating which responsibility criterion was applicable.24 The amenability to scrutiny of the correct application of the Dublin criteria has confirmed in the same year by the Court of Justice of the European Union (CJEU) in the cases of Ghezelbash and Karim.25
The CALL also considers whether the sovereignty clause or the protection clause should have been applied by assessing potential breaches of Article 3 ECHR. In order to do this, the CALL takes into consideration all the relevant elements concerning the state of reception conditions and the asylum procedure in the responsible state where the AO wants to transfer the asylum seeker to; frequently taking into account national AIDA reports. When such information on reception conditions and the asylum procedure in the country is only invoked in an annulment procedure, the CALL will only determine whether this information should have been known by the AO and included in its assessment of the sovereignty clause, in which case it will suspend the decision (regularly causing the AO to revoke the decision spontaneously itself, as such avoiding negative follow-up jurisprudence) or even annul it and send it back to the AO for additional examination.26 Following the Tarakhel judgment, in these suspension and annulment appeals the CALL not only scrutinises the general reception and procedural situation in the responsible state on systemic shortcomings, but also evaluates the need for individual guarantees from such a state in case shortcomings are not systemic, where the applicant appears to be specifically vulnerable (see section on Dublin: Procedure).
There is no information available with regard to the average processing time for the CALL to decide on the appeals against Dublin decisions specifically, nor is this available for the annulment or suspension procedures before the CALL in general.
As with all final judgments by administrative judicial bodies, a non-suspensive cassation appeal before the Council of State can also be introduced against the judgments of the CALL concerning Dublin transfers.27
The Ministerial Decree on Second Line Assistance, laying down the remuneration system for lawyers providing free legal assistance has not determined specific points for a lawyer's intervention in the Dublin procedure at first instance with the AO. Of course the general Judicial Code and Royal Decree provisions on free legal assistance can be applied and asylum seekers as such are entitled to a “pro-Deo” lawyer also with regard to the Dublin procedure. However, since assistance by a lawyer is not allowed during the Dublin interview, the general category of administrative procedures will not be applied by the bureau for legal assistance. There might, however, be analogy with the category of written legal advice if the lawyer intervenes in any other way (written or otherwise) at the AO with regard to a Dublin case.
With regard to the appeal, the general rules for free legal assistance in annulment and suspension petitions with the CALL apply (see section on Regular Procedure: Legal Assistance).
Sometimes, transfers under the Dublin Regulation are not executed either following:
An informal (internal) and not explicitly motivated decision of the AO itself; or
A suspension judgment (in some rare cases followed by an annulment judgment) of the CALL.
Greece: Following the M.S.S. v. Belgium and Greece judgment, there is a general suspension of transfers to Greece, based on the protection (“humanitarian”) clause. In his October 2016 Policy Note, the Secretary of State commits to reintroducing transfers to Greece, as the “only way for candidate applicants to understand that they may not choose their country of asylum.” Belgium therefore seems to support the European Commission’s efforts to recommend the reinstatement of transfers by the beginning of next year.28 In the fall of 2016 the Aliens Office experimented with a couple of test cases to Greece. In the end they suspended this test and no transfers to Greece took place.29
Hungary: The AO considers that there are no systemic problems with reception conditions or the asylum system in Hungary. Since mid-2015 and throughout 2016, the CALL has suspended many transfers to Hungary, mainly because it considers there is no guaranteed access to the asylum procedure or sufficient procedural safeguards or reception conditions for most Dublin returnees.30 In the course of 2016, the AO stopped Dublin transfers to Hungary, and Belgium started to declare itself responsible instead of transferring to Hungary. The AO emphasised in December 2016 that it is not due to the circumstances for asylum seeker in Hungary as such, but because the total lack of cooperation on the part of Hungary for Dublin transfers.31
Italy: Following the Tarakhel v Switzerland ruling of the ECtHR regarding Italy, the CALL initially suspended transfers in respect of applicants who were at risk of being left homeless upon return due to the shortage in reception places in the country.32 With the exception of families with minor children, this has not led to a generalised AO practice to demand individualised guarantees from Italy. In 2016, the CALL has upheld transfers to Italy for most asylum seekers,33 although it has ruled against transfers in some specific cases.34
Bulgaria: The AO continues to decide that transfers of asylum seekers to Bulgaria do not automatically constitute a risk of inhumane treatment, but only executes a small part of those decisions. This practice is disputable, since it leaves asylum seekers in a limbo.
In 2016, the CALL annulled several transfer decisions to Bulgaria. The CALL rules that recent reports and information have shown that there is a deterioration of the quality of the asylum procedure and the reception conditions in Bulgaria.35 For example, in an appeal decision taken on 1 June 2016, the CALL, suspended a Dublin transfer of an Afghan national to Bulgaria on grounds that such a transfer would lead to a breach of article 3 of the Convention. The Afghan national applied for asylum in Belgium on 20 August 2015 and received a return decision on 26 April 2016 after the acceptance of a take back request by Bulgaria.36
There have also been suspensions of transfers on a case-by-case basis to Poland,37 Malta,38 Croatia,39 Spain,40 and even Germany in 2016.41 This has been done inter alia for reasons of specific vulnerability of the asylum seeker concerned, reception conditions for children or medical patients.
The AO considers part of the Dublin returnees as subsequent applicants. This is the case for Dublin returnees whose asylum application in Belgium has been closed, for example following an explicit and/or implicit withdrawal. In the case where an asylum seeker has left Belgium before the first interview, he or she will have gotten a “technical refusal” in his or her first asylum procedure. When this asylum seeker is then sent back to Belgium following a Dublin procedure and lodges his asylum application again, the CGRA is legally obliged to take it in consideration.42 Nonetheless, these asylum seekers often are still considered as subsequent applicants and therefore are without shelter until this decision is officially taken.
When considered as a subsequent applicant, they have no automatic access to reception. They will fall under the general practice of reception for subsequent applications (see section on Criteria and restrictions to access reception conditions).43
- 1. See e.g. Article 4bis(1) and Article 51/5(3) Aliens Act.
- 2. Number confirmed by the Aliens Office.
- 3. Information provided by the AO: Myria, Contact meeting, 16 November 2016, available at: http://bit.ly/2jGWKYp, para 21.
- 4. Information provided by the AO: Myria, Contact meeting, 16 November 2016, para 34.
- 5. CJEU, Case C-245/11, K v Bundesasylamt, 6 November 2012.
- 6. Article 51/3 Aliens Act.
- 7. Article 74/6(1bis)(13) Aliens Act.
- 8. Article 10 Royal Decree on AO Procedure.
- 9. Myria, Contact meeting, 21 December 2016, available at: http://bit.ly/2jGwYmM, para 29.
- 10. Article 71/3 Royal Decree 1981.
- 11. Article 51/7 Aliens Act.
- 12. ECtHR, Tarakhel v Switzerland, Application No 29217/12, Judgment of 4 November 2014.
- 13. Letter from the AO to CBAR-BCHV in response to questions concerning the implementation of the Tarakhel judgment, 17 November 2014, unpublished.
- 14. See e.g. CALL, Judgment No 144544, 29 April 2015; Judgment No 155882, 30 October 2015.
- 15. CALL, Judgment No 144188, 27 April 2015.
- 16. CALL, Judgment No 144100, 28 April 2015.
- 17. CALL, Judgment No 176046, 10 October 2016.
- 18. Council of Europe, Report by Nils Muižnieks Following his Visit to Belgium from 14 to 18 September 2015, available at: http://bit.ly/2jAmSZH.
- 19. Information provided by the AO: CBAR-BCHV, Contact meeting, 11 March 2014, available at: http://bit.ly/1Qwc3MP.
- 20. AO, Statistical Annual Report 2015, available at: http://bit.ly/2jZkh7u.
- 21. Article 10 Royal Decree on AO Procedure.
- 22. Article 18 Royal Decree on AO Procedure.
- 23. Article 39/2(2) Aliens Act.
- 24. CALL, Judgment No 165134, 31 March 2016, available at: http://bit.ly/2kZHlUV.
- 25. CJEU, Case C-63/15 Ghezelbash and Case C-155/15 Karim v. Migrationsverket, Judgments of 7 June 2016.
- 26. See e.g. CALL, Judgment No 116471, 3 January 2014 (suspension, Bulgaria) available in Dutch at: http://bit.ly/1FxO9LJ; Judgment No 117992, 30 January 2014 (annulment, Malta), available in Dutch at: http://bit.ly/1Gon1oq.
- 27. Article 14(2) Acts on the Council of State.
- 28. La Chambre, Note de politique générale, Asile et Migration, 27 October 2016, DOC 54 2111/017, available at: http://bit.ly/2kX0S8p.
- 29. Information provided by the AO: Myria, Contact meeting, 16 November 2016, available at: http://bit.ly/2jAgeCC, para 21.
- 30. See e.g. CALL, Judgment No 148492, 25 June 2015; No 162395, 18 February 2016; No 164981, 31 March 2016; No 166392, 25 April 2016; No 166905, 29 April 2016; No 168142, 24 May 2016; No 171730, 12 July 2016, referring to the AIDA Hungary report.
- 31. Information provided by the AO: Myria, Contact meeting, 21 December 2016, available at: http://bit.ly/2jGwYmM.
- 32. CALL, Judgment No 138940, 20 February 2015; Judgment No 144488, 27 April 2015; Judgment No 144400, 28 April 2015.
- 33. See e.g. CALL, Judgment No 165056, 31 March 2016; No 169601, 10 June 2016; No172362, 26 July 2016; No 173670, 29 August 2016; No 174958, 26 September 2016; No 177208, 28 October 2016; No 1772652 November 2016.
- 34. See e.g. CALL, Judgment No 161166, 9 February 2016; No 162742, 25 February 2016; No 172924, 8 August 2016; No 176192, 12 October 2016.
- 35. CALL, judgment No.175 351, 26 September 2016; CALL, judgments No. 178.479, 178.480, 178.481, 28 November 2016.
- 36. CALL, Judgment No. 168.891, 1 June 2016, available at: http://bit.ly/2jAyR9t.
- 37. CALL, Judgment No 178160, 22 November 2016.
- 38. CALL, Judgment No 161122, 29 January 2016.
- 39. CALL, Judgment No 172921, 8 August 2016.
- 40. CALL, Judgment No 173295, 17 August 2016; No 177192, 27 October 2016; No 178640, 28 November 2016.
- 41. CALL, Judgment No 176046, 10 October 2016.
- 42. Art. 57/6/2 Aliens Act.
- 43. Information provided by the AO: Myria, Contact meeting, 21 June 2016, available at: http://bit.ly/2k3obi9, para 9.