With the Law of 8 May 2013, which entered into force on 1 September 2013, the concept of a first country of asylum was also introduced in the Aliens Act, in two different provisions.
First, when an asylum seeker already has refugee status in another EU Member State, the CGRS can decide within 15 working days not to take into consideration the asylum application, unless the asylum seeker can prove that he or she cannot effectively rely on this status anymore (see the section on Admissibility Procedure).1
Secondly, when there is a first non-EU country of asylum where the asylum seeker already enjoys “real protection” that he or she can still rely on, meaning that he or she is recognised as refugee there or at least has guarantees that the non-refoulement principle will be respected, and he or she can effectively regain access to that country, this can be a sufficient reason for the CGRS to refuse the asylum application as unfounded, unless the asylum seeker can prove that he or she can no longer invoke that real protection or get access to the territory of that state.2 This is not a ground for inadmissibility, nor are these asylum applications prioritised.
At the end of 2013, beginning of 2014, this first country of asylum concept was applied largely to refuse asylum applications from Tibetans having lived in India before coming to Belgium, although India is not a signatory to the 1951 Refugee Convention. Moreover, Rwandans and Congolese with (often Mandate UNHCR) refugee status in another African country had been refused international protection on this ground, but this practice has been halted due to some judgments of the CALL considering this protection status ineffective and/or inaccessible.3 The CALL has repeatedly refused to refer a preliminary question to the CJEU on the interpretation of the new concept of “real protection”.
Recently the CGRS has confirmed it also applies the concept in other situations, e.g. in the case of Syrian refugees from a non-specified country from the Middle East (probably Jordan) because it was accepted that they it was possible to return to that country, they had a residence permit there and because of their socio-economic situation.4
In all of these legal provisions concerning the existence of a safe country as an inadmissibility ground or reason to reject the claim on the merits, a presumption is introduced to the effect that there is no need for international protection. This seems to exonerate the CGRS of its share in the burden of proof and its obligation to further motivate its decision. The burden of proof of the contrary – that the country of origin is not safe or that there is no effectively accessible international protection available – is put completely on the asylum seeker.