Author
General (scope, criteria, time limits)
The admissibility procedure is set out in Article 57/6 §3 of the Aliens Act. The CGRS can declare an asylum application inadmissible where the asylum applicant:
- Enjoys protection in a First Country of Asylum;
- Comes from a Safe Third Country;
- Enjoys protection in another EU Member State;
- Is a national of an EU Member State or a country with an accession treaty with the EU;[1]
- Has made a Subsequent Application with no new elements; or
- Is a minor dependant who, after a final decision on the application lodged on their behalf, lodges a separate application without justification.
The CGRS must decide on inadmissibility within 15 working days. Shorter time limits of 10 working days are foreseen for subsequent applications or even 2 working days for subsequent applications in detention.
In 2024, the CGRS issued 4,561 inadmissibility decisions.[2]
Personal interview
Since the procedure that leads to a decision of inadmissibility does not in itself differ from the regular procedure, other than the time period in which a decision has to be made, the same legal provisions apply to the interviews both on the level of the Immigration Office and the CGRS. At the CGRS, the regular personal interview about the facts underlying the asylum application has to take place in the same level of detail as is the case for other asylum applications. The interview may be omitted where the CGRS deems it can take a decision on a subsequent application based on the elements in the file.[3]
Appeal
An appeal against an inadmissibility decision must be lodged within 10 days, or 5 days in the case of a subsequent application by an applicant being detained in a specific place in view of their removal from the territory (a place as described in art. 74/8 and 74/9 of the Aliens act).[4] The appeal has an automatic suspensive effect, except for some cases concerning Subsequent Applications.[5] The CALL shall decide on the application within 2 months,[6] under ‘full judicial review’ (plein contentieux). Apart from this, the appeal procedure against a decision taken in the context of an admissibility procedure does not defer from the general appeal procedure (see Appeal).
Legal assistance
In first instance procedures leading to inadmissibility decisions as well as in the appeal procedures, the general provisions on the right and access to free legal assistance apply. Challenges identified in the provision of legal assistance during the regular procedure also apply to the admissibility procedure (see section on Regular Procedure: Legal Assistance). During some admissibility procedures – like for example the procedure following a subsequent application for international protection – applicants often do not have the right to reception in a centre and stay at a private address (for example with family, friends or solidary citizens). This situation makes it more difficult to qualify for free legal assistance (see Regular procedure: Second line legal assistance). In practice, much fewer procedural interventions by lawyers, in appeals or otherwise, take place in these specific cases.
Suspension of returns for beneficiaries of protection in another Member State
On the basis of Article 57/6 §3 (1) 3° of the Aliens Act, the CGRS can declare an asylum application inadmissible where the asylum applicant has received international protection in another EU Member State. In application of the CJUE Ibrahim and Jawo decisions[7], the CALL has found on several occasions that the CGRS cannot reject an application on this ground if a beneficiary of international protection in another EU Member state would, regardless of their personal will and choices, be in a situation of extreme material poverty when returned to that Member State.[8]
In 2024, there was no general policy of suspension of returns for beneficiaries of protection in another Member State. However, in 2024, the CALL has ruled that additional caution is needed when examining applications from beneficiaries of international protection in Bulgaria and Greece, due to the limited access to socio-economic rights for status holders in these Member States.[9] The CALL assessed the situation in Bulgaria, and even more so in Greece, to be very precarious but not such that every beneficiary of protection would inevitably end up in a state of extreme material poverty upon return, an individual assessment of the person’s situation remaining necessary in each case. As regards applications from beneficiaries in Greece, the CALL has found that the disposal of a valid Greek residence permit (ADET-card) is important. Applicants without a valid ADET-card would need means, a network or other forms of support to avoid them finding themselves in a situation of extreme material poverty.[10] For applicants with a valid Greek residence permit, the CALL assesses that it is necessary that the applicant has a certain level of independence and lack of specific vulnerabilities. All elements related to the personal situation of the applicant need to be considered. In a judgment from October 2024, the CALL annulled an inadmissibility decision by the CGRS regarding a beneficiary of international protection in Greece, finding that the psychological vulnerability of the latter led to a risk that he would be exposed to a situation of extreme material poverty when returned to Greece.[11]
In November 2024 the CALL annulled an inadmissibility decision by the CGRS regarding a family with six young children, four of whom have developmental disabilities and speech disorders, who had received international protection in Bulgaria.[12] The applicants argued that they had been unable to find employment in Bulgaria, making it impossible to afford housing, medical care, food, and education. The CALL noted that the applicants’ personal interviews had been very brief and that they were asked only a limited number of questions about their living conditions in Bulgaria. The Council annulled the inadmissibility decision and instructed the CGRS to conduct a more thorough investigation into the applicants’ individual vulnerabilities concerning a potential return to Bulgaria.
[1] Note that this ground is not foreseen in Article 33(2) recast Asylum Procedures Directive.
[2] CGRS, Asylum statistics 2024, available in English here.
[3] Article 57/5-ter(2) Aliens Act.
[4] Article 39/57(1)(3) Aliens Act.
[5] Article 39/70 Aliens Act.
[6] Article 39/76(3)(3) Aliens Act.
[7] CJUE 9 March 2019, C-297/17, C-318/17, C-319/17 en C-438/17, Ibrahim e.a./ Bundesrepublik Deutschland and CJUE 9 March 2019, C-163/17, Abubacarr Jawo / Bundesrepublik Deutschland.
[8] See, among others, CALL, Decision n° 300.342 of 22 January 2024, available in Dutch here, p. 27
[9] CALL, ‘Beneficiaries of international protection in Bulgaria and Greece’, 5 March 2024, available in Dutch and French here.
[10] CALL, Decision n° 300.342 of 22 January 2024, available in Dutch here.
[11] CALL, Decision no 313.706, 30 September 2024, available in French here.
[12] CALL, Decision no 317.036, 21 November 2024, available in Dutch here.