Author
The CGRS uses the accelerated procedure for nationals of safe countries of origin. The list has been renewed by the Royal Decree of 14 January 2022 (see Safe country of origin).
Palestinians originating from Gaza: the treatment of requests for international protection from Palestinians from Gaza has been subject to many changes in the past years and months. For a long time, Palestinians from Gaza were almost always granted protection in Belgium. However, in December 2018, the CGRS announced a policy change following an increase of asylum applications from Gazan Palestinians,[1] who were targeted by several dissuasion campaigns.[2]
The treatment of the request depends largely on whether the applicant is registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (hereafter UNRWA). Requests from those who are not registered with the UNRWA are treated just like any other request for international protection, using the standard criteria and procedure from article 48/3 and 48/4 of the Aliens Act.
In principle, Palestinians from Gaza who are registered with the UNRWA fall under the exclusion clause of article 1D of the Geneva Convention. However, the CALL accepts that UNRWA is not capable of protecting those whose individual safety is threatened following severe persecution and thus grants the refugee status to people in such conditions.[3] For other UNRWA registered Palestinian applicants from Gaza, the CGRS only grants international protection if they demonstrate that the protection from UNRWA does not suffice.
In November 2019, the CALL ruled that the UNRWA was, despite financial difficulties, still operational and that the security situation in Gaza was generally speaking precarious but did not amount to systematic persecution nor inhumane living conditions. Only in individual cases with exceptional circumstances could Gazan Palestinians with UNRWA-support still be eligible for international protection in Belgium.[4]
Since July 2020, however, the CALL has annulled several decisions by the CGRS, ruling that the information on UNRWA it used in assessing asylum applications from Gazan Palestinians was outdated. After an update of the country information by the CGRS in the beginning of 2021, the CALL has rendered several decisions in the course of February and March 2021 granting the refugee status to UNRWA-registered applicants from Gaza, stating that the difficulties UNRWA was facing at that moment made the protection and assistance it is supposed to offer ineffective.[5] In the following months, the CGRS systematically revoked its decisions in cases from UNRWA-registered applicants from Gaza pending before the CALL, often right before the hearing. Consequently, the cases were not decided on the merits and were remitted to the CGRS, before which they are still pending. In the beginning of June, the CGRS temporarily suspended the treatment of cases of UNRWA-registered applicants from Gaza due to the unclear and rapidly changing situation in Gaza.[6] It counted on a swift improvement of the financial situation of UNRWA. As this was not the case, the CGRS lifted the suspension mid-July and resumed decision-making, starting with the cases in which it had revoked the earlier decision of refusal with an appeal pending before the CALL. The CGRS indicated that the possibility of obtaining assistance from UNRWA would be assessed on an individual basis and the granting of refugee status would depend on personal circumstances.[7] In practice, UNRWA-registered applicants from Gaza were granted protection in many cases in the second half of 2021.[8] However, the CGRS also indicated that “for cases in which refugee status is granted due to the lack of assistance from the UNRWA (given its current difficult situation), it may be possible that refugee status is ended if in the future (e.g. within a year), it is established that the assistance or the financial situation of the UNRWA is guaranteed again on a permanent basis.”[9]
El Salvador: for years, people fleeing El Salvador almost automatically received asylum in Belgium. Given the omnipresent gang violence, intimidation and high death rates in the country, the CGRS and CALL accepted that in general, Salvadorians were in need of international protection.
In October 2019, the CGRS announced a policy change on its website following an increase of arrivals from El Salvador. The CGRS stated this could be the result of the reigning perception that Salvadorians automatically receive international protection in Belgium, which would no(t) (longer) be the case.[10] The result is that, whereas until mid-2019, more than 90% of requests for international protection were granted to Salvadorians, now less than 10% of applicants receive protection.
On 5 November 2020, the CALL aligned its case law with the CGRS policy in three judgments rendered in United Chambers.[11] The CALL acknowledged that government protection in El Salvador is not always available or effective, but is nevertheless not absent either. The standard of proof to demonstrate the lack of efficient government protection is therefore low, but should nonetheless be provided in every individual case.
Furthermore, it ruled that the situation in El Salvador – though precarious and riddled with targeted violence – is not one of “indiscriminate violence” as defined in art. 15 (c) of the Qualification Directive as a condition to grant subsidiary protection. Concerning an individual fear for persecution or serious harm by the organised criminal groups, the CALL ruled that (1) there is no general risk for all Salvadorians returning after having abandoned the country and (2) a fear of extortion upon return is, in itself, not sufficiently grave to grant the applicant protection in Belgium. Specific individual circumstances have to be evaluated on a case-by-case bases for a positive decision to be issued. In three judgements rendered on 25 January 2021, the CALL further refined its case-law for what concerns cases in which the applicants had been the victim of extortion accompanied by death-threats by the gangs. This raised the question as to possible repercussions towards the applicants upon return. The CALL found that the available country information did not allow to sufficiently assess the precise risk incurred by Salvadorians upon return after having left because of extortion by the gangs. It annulled the decisions taken by the CGRS, ordering further research on this matter.[12]
Afghanistan: As the Taliban was gradually taking over of Afghanistan, the Belgian government – together with Germany, Austria, the Netherlands, Greece and Norway – sent a letter to the European Commission on returns to Afghanistan. The letter indicated the will to invest in expanding reception possibilities in Afghanistan’s neighbouring countries and the need to continue forced returns of Afghan nationals.[13] A few days later however, the Belgian government decided it would de facto halt forced returns to Afghanistan.[14]
After the fall of Kabul on 15 August, the Belgian government started an evacuation mission called ‘Red Kite’. Between 20 and 25 August, Belgium executed evacuation missions between Kabul and Islamabad. Individuals who wanted to be evacuated had to reach Kabul’s airport, and register on a list for evacuation. Belgium was able to evacuate 1,426 persons. The following categories were eligible for evacuation (in descending order of priority), and could be registered on the list:
- Belgian citizens and their nuclear family
- Afghan citizens who worked for Belgium or for international organisations, and their nuclear family
- Afghan citizens who were in danger due to their professional activities in Afghanistan
- Afghan citizens with a Belgian residence permit
Upon arrival in Islamabad, the evacuees had to undergo an extensive security screening, after which they were transferred to Belgium.[15]
Afghan citizens who did not have a Belgian residence permit received a short-term visa valid for 15 days, after which they were able to apply for international protection. As a result of operation ‘Red Kite’ the number of asylum applications saw a sudden peak in August and September, which in turn had a significant impact on the reception network.
As the situation in Afghanistan deteriorated further, with little reliable information available the CGRA decided mid-August to temporarily and partially suspend decisions on Afghan applications for international protection.[16] If possible, refugee status was still recognised. The following decisions were suspended:
- Decisions about subsidiary protection
- Decisions about the non-admissibility of a subsequent application, if the new elements provided by the applicant solely relied on the changed general situation in Afghanistan
- Refusal decisions
In practice, this partial suspension meant that if an Afghan citizen could not be given refugee status this person’s application would be ‘put on hold’ for an indefinite amount of time. The suspension lasted until 2 March 2022, when the CGRS resumed decision-making (subsidiary protection, non-admissibility of subsequent application and refusals) on all cases involving Afghan applicants. Overall, the CGRS indicates that the situation for many Afghans has clearly deteriorated. As a result, various “profiles at risk” can “count on refugee status”. Among these are journalists, human rights activists, political opponents and critics of the Taliban, people occupying certain functions under the previous government, staff members of the previous foreign military troops or foreign organisations, certain minorities, members of the LGBT community and other people opposing the conservative religious norms and values fostered by the Taliban rules, isolated minors or women not supported by a family network, family members of certain profiles at risk.[17]
With regards to the need for subsidiary protection, the CGRS states that the level of indiscriminate violence has significantly decreased since the Taliban takeover. It highlighted that there still is violence in the country, but that most attacks are acts of targeted violence. As a result, the CGRS evaluated that there is no longer a real risk of falling victim to indiscriminate violence in Afghanistan. Therefore, subsidiary protection status will no longer be granted on the basis of the security situation.[18]
This change in policy might result in a serious increase in the amount of negative decisions issued for cases of Afghan applicants for international protection, especially for those groups who used to rely on subsidiary protection recognition in the past. This is in stark contrast with the most recent guidance note of UNHCR on international protection needs of people fleeing Afghanistan, where the agency indicates it is not possible to determine with the requisite degree of certainty that an Afghan asylum seeker is not in need of international refugee protection. For this reason, UNHCR calls on States to suspend the issuance of decisions to individual applicants in all cases where it cannot be determined that the person in question is a refugee within the meaning of the 1951 Convention.[19] It remains to be seen how this policy will be evaluated by the Council for Alien Law Litigation.
Ukraine: Not long after the start of the conflict in Ukraine, the first Ukrainian refugees reached the gates of the already overwhelmed Arrival center ‘Klein Kasteeltje’. On 28 February 2022, between 300 and 400 applicants for international protection were standing in line to apply for asylum. Since the reception crisis is still ongoing and the reception network could not handle all new arrivals, the centre went back to not let single men access, thus preventing them from being able to apply for international protection. The situation remained similarly precarious in the next days. As of 2 March 2022, Ukrainian applicants were handed out a document that informed them about the possible creation of a separate statute and procedure for them, and were recommended to come back the week after.
Following the activation of the European Temporary Protection Directive through the Council of the European Union decision of 4 March 2022, a temporary protection status is available for:
- Ukrainian nationals residing in Ukraine who have been displaced on or after 24 February 2022 and their family members;
- stateless persons and nationals of third countries other than Ukraine who can prove they were legally residing in Ukraine before 24 February 2022, on the basis of a valid permanent residence permit issued in accordance with Ukrainian law, and who are unable to return in safe and durable conditions to their country of origin or region within their country of origin.
In a first phase, a registration centre was set up in ‘Bordet’ (Brussels), but this location was inadequate for the large amounts of applicants present every day, making it impossible to assure a full registration procedure for all applicants. From 4 to 13 March, a ‘light’ registration system was therefore put in place in Bordet. Applicants received an application certificate, and would be invited in another location (Pacheco) later on, where they would finalise their application and receive a temporary protection certificate.
On 14 March 2022, the registration centre moved to Brussels Expo Hall Palais 8 (Heysel, Brussels), with much larger capacity. Since then, the full registration can take place on the day of application and applicants receive their temporary protection certificate on the day of their application. With this certificate, they can register in a local commune and get access to work, social aid and medical insurance. Since 21 March 2022, applicants can make an online appointment for registration at Heysel, to avoid long queues.
By 28 March 2022, 23,361 persons were granted temporary protection.[20]
People who are not eligible for the temporary protection – such as Ukrainian citizens having left Ukraine before 24 February 2022 or having a residence status in another EU member state – are directed towards the asylum procedure, which remains also accessible for Ukrainian citizens who are eligible for or have asked for or received temporary protection. However, the examination of an application for international protection is suspended as long as the applicant enjoys temporary protection.[21] Moreover, the CGRA announced on 28 February 2022 that it would freeze the treatment of requests for international protection introduced by Ukrainian citizens. This means that no decisions are taken, and no personal interviews are organised.[22]
[1] CGRS Communication from 5 December 2018, available here on the website of the CGRS. Last access 13 January 2021.
[2] Knack, ‘De Block gaat Palestijnen ontraden om naar België te komen’, 4 March 2019, available at: https://bit.ly/368goEV; MO, ‘Zo ontmoedigt ons land Palestijnen uit Gaza om hier asiel aan te vragen’, 24 September 2019, https://bit.ly/2NAnGux.
[3] See for example the judgments No 235 357; 235 359; 235 360 of 20 April 2020, where the CALL reformed the decisions of the CGRS and granted the refugee status to Palestinians from Gaza who demonstrated severe persecution threatening their individual safety.
[4] CALL, Decisions No 28889; 228888; 228946 and 228949; 18 and 19 November 2019.
[5] For example: CALL, Decision No 249 780, 24 February 2021; Decision No 249 955, 25 February 2021.
[6] CGRS communication on 4 June 2021, available here on the CGRS website. Last access 18 January 2022.
[7] CGRS communication “The processing of applications filed by Palestinians (update)” on 13 July 2021, available here on the CGRS website. Last access 18 January 2022.
[8] CGRS communication “Asylum statistics 2021” on 10 January 2022, available here on the CGRS website. Last access 18 January 2022.
[9] CGRS communication “The processing of applications filed by Palestinians (update)” on 13 July 2021, available here on the CGRS website. Last access 18 January 2022.
[10] CGRS Communication from 10 October 2019, available here on the CGRS website. Last access 21 January 2021.
[11] CALL judgments No 243 676; 243 704 and 243 705 of 5 November 2020.
[12] CALL judgments No 248 102; 248 104 and 248 105 of 25 January 2021, available at: https://bit.ly/34HECL7.
[13] Reuters, ‘Six EU countries warn against open door for Afghan asylum seekers’, 10 August 2021, available in English on: https://reut.rs/3g8cCmp.
[14] Sammy Mahdi, “Omwille van de vele begrijpelijke vragen over terugkeer, toch dit: je hebt geen “algemene terugkeerstop” nodig om te beseffen dat bij iedere individuele beoordeling artikel 3 EVRM gedwongen terugkeer naar Afghanistan wellicht nog lang onmogelijk zal zijn”, Twitter, 15 August 2021, available in Dutch on: https://bit.ly/340IyWP.
[15] All information about the evacuation mission originates from a special parliamentary commission combining the commission of foreign affairs, defence, interior, security, migration and public services held on 26 August 2021, available in French on: https://bit.ly/340IyWP.
[16] CGRA, ‘Afghanistan Policy’, 6 January 2022, available in English on: https://bit.ly/3IyzWpg.
[17] CGRA, ‘Afghanistan: New Policy’, 2 March 2022, available in English: https://bit.ly/35H5pIe.
[18] CGRA, ‘Afghanistan: New Policy’, 2 March 2022, available in English: https://bit.ly/35H5pIe.
[19] UNHCR, ‘Guidance Note on the International Protection Needs of People Fleeing Afghanistan, February 2022, available in English: https://bit.ly/360wC8u.
[20] Statistics available and updated daily: https://bit.ly/3tQPXm3.
[21] Art. 51/9 Aliens Act.
[22] CGRA, ‘Situation in Ukraine: Freeze on Processing of Applications’, 28 February 2022, available in English at: https://bit.ly/3HWNDxM.