Author
General
Dublin statistics: 2020[1]
In 2020 the total number of outgoing take charge and take back-requests was 6,607 (1,325 take charge and 5,282 take back requests), of which none for dependency reasons,[2] and one for humanitarian reasons.[3] A total of 3,813 requests were accepted.
A total of 454 persons were transferred from Belgium to other Member States in 2020. 406 of these transfers were carried out within six months, 43 within 12 months, and 5 within 18 months after the acceptance by the other Member State.
In 2020 there was a total of 2,985 incoming take charge and take back requests (401 take charge requests and 2,584 take back requests, of which none for dependency reasons,[4] and 47 for humanitarian reasons.[5] Out of the total of incoming requests, 1,655 were accepted, of which one for dependent persons and 3 for humanitarian reasons. 346 persons were effectively transferred to Belgium.
According to available statistics, the Immigration Office accepted 779 persons under the sovereignty clause.[6] In 2020 Belgium further became responsible “by default” for 16,733 persons: 3,142 persons were not transferred in time,[7] and 29 were not transferred due to the deficiencies in the asylum or reception system which could lead to an inhumane and degrading treatment in another Member State or because no Member State responsible could be designated on the basis of the criteria listed in the Dublin III Regulation.[8]
Application of the Dublin criteria
There is no information available on how the Immigration Office generally applies the Dublin criteria. Information can be obtained through Parliamentary questions, and questions during the monthly contact meetings, of which the reports are published online.[9] 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.[10]
The dependent persons and discretionary clauses
Settled case law indicates that the Immigration Office, as confirmed by the CALL, strictly applies the dependency clause of Article 16 of the Dublin Regulation.[11] However, this observation does not take into account the decisions in which the Immigration Office declared itself responsible for asylum applications. Exchanges with lawyers and practitioners indicate that information exchange on dependency and the situation in the other Member State between the Immigration Office and the lawyer prior to the decision in a specific case may lead to Belgium declaring itself responsible. However, it is impossible for the lawyers to know which element is decisive in each case. They will often invoke other elements as well, such as detention and reception conditions, guarantees in the asylum procedure and access to an effective remedy in the responsible state, together with elements of dependency.
Moreover, case law analysis emphasises the necessity of submitting medical attestations when invoking medical problems.[12] A medical attestation concerning depression is not enough to prove dependency if it does not mention that the presence of a particular family member is necessary for the recovery.[13] Likewise, mere cash payments to someone who still works in the home country is not enough to prove dependency, nor is proof of the intention to take care of a family member during the asylum procedure,[14] or actually living with said family member.[15] According to the CALL, there have to be indications of a ‘more than usual relationship of dependency’, which has to be proven by substantial evidence.[16] Lastly, the fact that a family member, in light of whom dependency should be established, applied for a living wage, proves a fortiori that there is no dependency vis-à-vis the applicant.[17]
While the “sovereignty clause” of Article 17(1) of the Regulation is mentioned in Article 51/5(2) of the Aliens Act, the “protection clause” of Article 3(2) and the “humanitarian clause” of Article 17(2) are not. Both clauses are sometimes applied in practice but this is not done systematically. So far it is unclear when the Immigration Office declares itself responsible or applies the “sovereignty clause”, since no decision is taken but the file is immediately transferred to the CGRS.
The criteria for applying the clauses are very unclear and no specific statistics are publicly available on their use. Since the M.S.S. 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 “protection clause”. Since the C.K. and others v. Slovenia judgment of the CJEU,[18] the CALL pays particular attention to the risk of inhuman and/or degrading treatment that a transfer in itself might entail for people with serious mental or physical illnesses, even if the responsible Member State does not demonstrate systematic flaws.[19] This risk assessment is important in determining whether or not to apply the “sovereignty clause”. The determining element is whether the transfer would deteriorate the person’s state of health in a significant and permanent manner. Analysis of case law shows that CALL uses a very strict standard concerning both the nature of the illness and the evidence thereof.[20] For instance, suffering from epilepsy or a returning brain tumour as such do not meet the aforementioned standard.[21] Heavy reliance is placed on medical attestations, for both the state of health and the impact of a transfer thereon.[22]
Procedure
In practice, all asylum seekers are fingerprinted and checked in the Eurodac database after making their asylum application with the Immigration Office.[23] In case they refuse to be fingerprinted, their claim may be processed under the Accelerated Procedure.[24] The CGRS stated that it has not used this legal possibility yet in practice and it does not keep statistics of these cases.[25] Refusal to get fingerprinted could be interpreted as a refusal to cooperate with the authorities, which could result in detention.
Systematically, the Immigration Office 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 Immigration Office has clarified that, in line with the Court of Justice of the European Union (CJEU) ruling in Mengesteab,[26] the time limit for issuing a Dublin request starts running from the moment an asylum seeker makes an application at the Immigration Office, and not from the moment he or she is issued a ‘proof of asylum application’ (‘Annex 26’).[27]
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.[28]
In case Belgium is deemed the responsible state, the asylum seekers’ file is transferred to the CGRS, and it is further mentioned on the registration proof of the asylum application.[29]
Individualised guarantees
Following the 2014 ECtHR ruling in Tarakhel v. Switzerland,[30] the Immigration Office started to systematically demand individualised guarantees in case of transfer requests to Italy of families with children. These individualised guarantees included specific accommodation, material reception conditions and family unity.[31] This practice took an end in January 2019 following a letter from the Italian authorities stating that families with children will be accommodated in specific reception centres and the family unity will be respected. The Immigration Office considers this as sufficient guarantees.
The Immigration Office does not systematically ask individualised guarantees for vulnerable asylum applicants, although it sometimes requests guarantees when the continuity of an asylum seeker’s medical treatment has to be ensured in the country of destination. The CALL has overruled the Immigration Office’s practice in some cases, without this having a generalised effect on its practice. By way of example, in 2015-2016 some decisions by the Immigration Office 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.[32]
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 Immigration 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.[33]
In a ruling of March 2018, the CALL annulled the transfer decision under the Dublin III Regulation of an asylum seeker with HIV. Although the Immigration Office at that time had recognised the abovementioned Tarakhel jurisprudence and the fact that the transfer of an asylum seeker with additional vulnerabilities might entail a violation of Article 3 ECHR, it did not request individual guarantees in the present case. More specifically, the Immigration Office did not attach importance to the asylum seeker’s vulnerability because of the HIV. On the contrary, the CALL decided that the decision of the Immigration Office was not sufficiently motivated in the light of article 3 ECHR as well as the principle of due care. Moreover, the Immigration Office ignored the asylum seeker’s letter explaining that she has HIV, for which she is receiving treatment in Belgium.[34]
In a ruling of May 2018, the CALL annulled the transfer to Spain of an asylum seeker with a new-born child, as individualised guarantees concerning reception conditions had not been requested. According to the CALL, the fact that the Immigration Office referred to general information on reception conditions to determine what the specific reception conditions of new-borns in Spain are was not sufficient to meet the requirements of Article 3 ECHR.[35] In a ruling that occurred on the same day and was based on the same reasoning, the CALL annulled the transfer of two young children who were accompanied by their parents.[36]
In a ruling of July 2018, the CALL annulled the transfer to Germany of an asylum seeker having diabetes and parkinson’s disease, as the Immigration Office did not request individualised guarantees and did not proceed to a rigorous examination of the evidence indicating the existence of a real risk of treatment prohibited by Article 3 ECHR. This decision was essentially based on the lack of individualised guarantees and on the AIDA report on Germany which indicates that asylum seekers have limited access to health care in Germany or that, in some cases, necessary but expensive treatments were not administered.[37]
In January 2019, the CALL confirmed this reasoning in an appeal against a transfer decision to Italy concerning a woman who needed a medical follow-up. The decision referred to the AIDA report on Italy which indicates that it can take up to several months before an asylum seeker has access to medical care. The CALL suspended the transfer decision because no rigorous research was done by the Immigration Office on the possible consequences a transfer would have, and because it did not request individual guarantees.[38]
In March 2019 the CALL suspended a Dublin transfer to Austria based on a violation of Article 3 ECHR. When the transfer decision was taken, the Immigration Office was aware of the fact that the applicant attempted suicide in Belgium in December 2018 and was violent. Given the special needs and the psychological condition of the applicant, concrete and individual guarantees should have been obtained from the Austrian authorities as to the specific circumstances in which he will be received, which was not done in the present case.[39]
In a ruling of August 2019 the CALL further annulled a Dublin transfer to Italy in which the Immigration Office had also omitted to request individual guarantees from the authorities.[40] The CALL cited the AIDA Italy report to demonstrate that it is not excluded that the applicant, as a Dublin returnee who previously received reception, may face difficult access to reception or even exclusion from reception conditions when returning to Italy. It ruled that the Immigration Office did not carry out a rigorous examination of a possible violation of Article 3 of the ECHR.
Transfers
Persons whose cases are considered to fall under the Dublin Regulation may in certain cases be detained (see section on Grounds for Detention).
Otherwise, after receiving an order to leave the territory in execution of the Dublin Regulation, the asylum seeker should stay at the disposal of the Immigration Office for the execution of the transfer. The Immigration Office has 6 months after the agreement of the responsible state to execute the transfer. In application of article 29(1) Dublin III regulation, the 6 months transfer period is suspended when a suspensive emergency appeal has been lodged (see Dublin: Appeal).
If the asylum seeker does not stay at the disposal of the Immigration Office for the execution of the Dublin transfer, in particular by not communicating their new address when leaving the reception centre, they are considered to be absconding. In that case, the transfer period can be extended from 6 months to maximum 18 months. It is therefore recommended that asylum seekers systematically inform the Immigration Office on their address.
Once the transfer period of 6 or – in case of extension – maximum 18 months has passed, Belgium’s responsibility for examining the asylum application will be accepted when the persons concerned present themselves to the Immigration Office again.
In two judgments issued on 8 May 2018 by the united chambers of the CALL in Belgium,[41] the CALL ruled that an implicit decision by the Immigration Office in the context of the Dublin III Regulation to extend the transfer period from 6 months to 18 months is a disputable administrative legal act. Such a decision must be motivated and be written so that effective judicial review is possible. The Immigration Office lodged an appeal with the Council of State to contest this interpretation of the CALL, but the Council of State confirmed the judgement of the CALL on 17 October 2019.[42]
In a judgment of 26 April 2019, the CALL ruled that the choice of domicile at the address of the lawyer is not sufficient to exclude a risk of absconding.[43] Referring to the CJEU’s Jawo judgment of 19 March 2019,[44] the CALL stated that if the applicant leaves the reception centre without communicating a new address, it may be presumed that he has absconded. However, it has to be considered whether he has been informed of the duty to provide his address and whether he is deliberately trying to escape from the authorities. As in the present case the applicant for international protection did not actually reside at the lawyer’s address, this choice of domicile did not allow the Immigration Office to transfer the applicant to the responsible Member State within six months as required under the Dublin III Regulation. Thus, by choosing the lawyer’s domicile, the applicant does not demonstrate that he did not intend to abscond and escape from the authorities according to the CALL.
In February 2020, the Immigration Office started a new practice with regards to the organisation of the voluntary return procedure for applicants who had received a Dublin decision. Upon notification of this decision, the applicant was given a ‘voluntary return form’. The applicant was obliged to fill in this document with his contact information and address, after which he had to send the filled in document to the Immigration Office by mail within ten days upon notification of the Dublin decision.
If the applicant failed to comply with this procedure, there was the risk that he would be considered as being absconded which resulted in the extension of the transfer deadline from 6 to 18 months.[45] This practice came under heavy criticism by various organisation and lawyers, since it denied applicants in the Dublin procedure the possibility to execute their right to an effective appeal. In addition, the practice was perceived as being based upon a faulty interpretation of the Jawo judgment and its definition of ‘absconded’.[46] The CALL confirmed this view in a judgment in July 2020. [47] It ruled that, according to the Jawo judgment, there has to be an intentional element linked to a material element in order to consider someone as being absconded. The intentional element, i.e. knowingly withdrawing from the return procedure, is required to consider someone as being absconded. According to the CALL, the absence of a filled in ‘voluntary return form’ within 10 days after notification of the Dublin decision was not a sufficient element of proof to indicate that the applicant was intentionally withdrawing from the return procedure. Thus, the Immigration Office’s practice to extend the transfer deadline from 6 to 18 months if an applicant did not fill in the voluntary return form was ruled to conflicting with the CJEU’s Jawo judgment. In this particular case the decision to extend the transfer deadline from 6 to 18 months was annulled. However, based on the CALL’s motivation in this judgment, the Immigration Office decided to end this practice altogether.
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 provided by the Immigration Office, but can vary greatly depending on the number of pending cases at the Dublin Unit and the Member State to which the Immigration Office wants to transfer a person to.
The time limit from the acceptance of a request until the actual transfer is unknown because the Immigration Office does not – and cannot – keep statistics relating to asylum seekers returning or going to the responsible country on a voluntary basis or on Dublin transfer decisions that are not executed in practice.
Personal interview
Asylum seekers have to attend a specific Dublin interview in which they can state their reasons for opposing a transfer to the responsible country.[48] Lawyers are not allowed to be present at any procedure at the Immigration Office, 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, presence of family members and relatives or other.[49] This is important since the CALL has repeatedly demanded from the Immigration Office that it responds to all arguments put forward and all information submitted.
During the interview the Immigration Office will ask about:
- The identity and country of the asylum seeker
- The route taken to Belgium
- Problems in the country of origin. The Immigration Office 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.[50] When a request to take back or take charge an asylum seeker is being sent to another state, this is mentioned in the “proof of asylum application” (“Annex 26”).
The questionnaire contains 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.
The applicant is asked more specifically whether there are reasons related to the reception conditions and the treatment that he or she had to endure and which would explain why he or she wishes to challenge the transfer decision 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 endures inhuman treatment.
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 Immigration Office. The Belgian authorities are reluctant to issue a copy of the questionnaire automatically, as they think that asylum seekers are using these copies to rectify inconsistencies in their “made-up” statements.[51] Practitioners have stated that it can take up to a 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.[52]
When the Immigration Office accepts that Belgium is responsible for the asylum claim, it transfers the file to the CGRS. However, the decision as to why Belgium is responsible is not motivated.
Since 2018, the Immigration Office also conducts interviews with adult family members in the context of Article 8 of the Dublin III Regulation to ensure that the best interest of the minor is taken into account. Based on their advice, the Dublin Unit of the Immigration Office decides if a reunification of the child with the adult involved is indeed in his or her best interest.
Appeal
Applications for which Belgium is not responsible are subject to a “refusal of entry or residence” decision by the Immigration Office and are not examined on the merits. 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.
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 Regular Procedure: Appeal).
In a judgment of 12 February 2019, the Council of State referred a preliminary question to the CJEU regarding the right to an effective remedy. More precisely, the Council of State asked whether ignoring new elements – that arise after a decision on a Dublin transfer has been taken – is contrary to the right to an effective remedy.[53] At the time of writing, the CJEU did not yet formulate an answer to this question.[54] In this regard, it should be noted that the CALL had suspended a transfer to Italy in a decision of 15 January 2019 on the basis that medical attestations were delivered after the transfer decision of the Immigration Office. Ignoring these medical attestations would call into question the conformity of the transfer with Article 3 ECHR.[55]
The CALL verifies if all substantial formalities have been respected by the Immigration Office.[56] In 2016 this has included cases where the Immigration Office ordered a Dublin transfer without indicating which responsibility criterion was applicable.[57] The amenability to scrutiny of the correct application of the Dublin criteria has been confirmed in the same year by the Court of Justice of the European Union (CJEU) in the cases of Ghezelbash and Karim.[58]
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 Immigration Office 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 Immigration Office and included to its assessment of the sovereignty clause, in which case it will suspend the decision (regularly causing the Immigration Office to revoke the decision spontaneously itself, as such avoiding negative follow-up jurisprudence) or even annul it and send it back to the Immigration Office for additional examination.[59]
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). [60]
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.[61]
Legal assistance
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 Immigration Office. 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 Immigration Office 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).
Suspension of transfers
Hungary: In the course of 2016, the Immigration Office stopped Dublin transfers to Hungary and Belgium started to declare itself responsible for the concerned asylum applications. The Immigration Office emphasised in December 2016 that the suspension of transfers to Hungary is not due to the reception conditions of asylum seekers in the country as such but to the total lack of cooperation from Hungary on Dublin transfers.[62] In January 2021, the Immigration Office confirmed that there were still no transfers carried out to Hungary, and that currently, no Dublin-transfer decisions are taken for Hungary.[63] The Dublin procedure takes place but Belgium ends up declaring itself responsible for the asylum application.[64] Nevertheless, in June 2018 the government tried to perform a (one-off) Dublin transfer to Hungary. The CALL suspended this decision as no effort had been made to look into the reception conditions and whether (legal) support was provided for Dublin returnees in Hungary.
Greece: In mid-2017 the government resumed transfer requests to Greece. From January to October 2019, 821 take charge and take back request were made to Greece. 5 persons were transferred.[65] In 2020 no persons were transferred to Greece.[66] In January 2021, the Immigration Office informed that currently no Dublin-transfer decisions are taken for Greece.[67]
In its decision of 8 June 2018, the CALL decided that the transfer of a Palestinian asylum seeker to Greece was not contrary to article 3 ECHR nor to Article 4 of the EU-Charter. It considered that the asylum situation in Greece does not demonstrate systemic flaws. This means that a case-by-case analysis is necessary to determine whether a transfer to Greece is possible. In the present case, the Palestinian asylum seeker did not demonstrate any additional vulnerability and the Immigration Office received individualised guarantees from Greece regarding his access to the asylum procedure and his reception conditions.[68]
This jurisprudence was later confirmed by the CALL in another decision of September 2018 regarding the transfer of an Afghan asylum seeker to Greece. The reasons justifying his transfer were the fact that it concerned a single man who did not demonstrate any additional vulnerability as an asylum seeker. The Immigration Office further received individualised guarantees from Greece, notably that he would not be placed in detention nor suffer a treatment contrary to article 3 ECHR in the designated reception camp, and that there was no real risk of him falling under the EU-Turkey deal.[69]
On the opposite, the CALL later suspended a transfer decision to Greece of a single woman due to her vulnerability as victim of sexual assault. Since she claimed to have been sexually assaulted twice during the time she spent in Greece, the CALL decided that the short interviews could not offer any conclusive evidence and that the sensitivity of disclosing intimate information on sexual abuses requires trust and confidence of the asylum seeker in the interviewing officer of the administration. Given the circumstances, and because of the lack of measures adapted to victims of gender-based violence in Greece, the CALL considered that the transfer was incompatible with Article 3 ECHR and Article 4 EU Charter.[70]
Italy: Following the Tarakhel v. Switzerland ruling of the ECtHR regarding Italy, the CALL initially suspended transfers of applicants who were at risk of being left homeless upon return due to the limited capacity of reception centres in the country.[71] In the cases of families with minor children, the Immigration Office had a generalised practice of requesting individualised guarantees from Italy. This practice ended in January 2019 following a letter from the Italian authorities stating that families with children will be accommodated in specific reception centres and the unity of family will be respected. The Immigration Office considers this as sufficient guarantees.[72] Ever since 2016, the CALL has upheld transfers to Italy for most asylum seekers,[73] although it has ruled against transfers in other cases.[74] The decisive criterion to rule against certain transfers is when applicants have a vulnerable profile but the government did not ask for individualised guarantees, or when the government did not investigate the return situation in Italy sufficiently.
In 2019, the CALL suspended several Dublin transfers to Italy. Most cases concerned a take back procedure (i.e. the applicant had already made an application for international protection in Italy) and involved vulnerable persons.[75] Regardless of the vulnerability of applicants, transfers have also been suspended by the CALL on the basis that the Immigration Office had not taken all the individual facts of the case into account and motivated the decision too generally, especially in cases where the applicant had demonstrated through different sources (e.g. AIDA reports, OSAR reports) that Dublin returnees face obstacles in (re)accessing the asylum procedure and the reception system since the Salvini Decree of October 2018.[76] In two other decisions, where the Immigration Office had motivated its decision more extensively, the CALL ruled that the AIDA and OSAR-reports did not demonstrate that transfers to Italy are contrary to Art. 3 ECHR and that the applicant had not sufficiently demonstrated such a risk in his individual case.[77]
In 2020, transfers to Italy were suspended at the height of the COVID-19 pandemic. Transfers resumed in the summer. In July, the CALL suspended a decision by the Immigration Office because it did not consider the risks imposed by the pandemic in Italy on the reception and sanitary conditions for AIP.[78] In two cases of August, however, the CALL found that the applicants did not demonstrate that the situation of COVID-19 in Italy constituted a real risk of inhuman or degrading treatment for them specifically.[79]
Bulgaria: The Immigration Office continues to consider that transfers of asylum seekers to Bulgaria do not automatically constitute a risk of inhumane treatment. The number of transfers carried out, however, is limited.[80] In January 2021 the Immigration Office confirmed it no longer takes Dublin-transfer decisions for Bulgaria, and that no transfers to Bulgaria were executed in 2020.[81]
In March 2017, the CALL ruled against the transfer of a single Afghan national to Bulgaria. The Immigration Office looked into general reports on the situation of asylum seekers in Bulgaria, but it did not specifically identify the reception conditions of Dublin returnees that have to make a new application for asylum. Moreover, since the Afghan national was a Dublin returnee and did not have a specific vulnerable profile, he most likely wouldn’t have benefited from accommodation upon his return. Therefore, the CALL found that the Immigration Office did not perform a rigorous investigation into the different possible situations in which Article 3 ECHR could be breached.[82]
Another and similar example is a case in which the CALL annulled a transfer decision because the reference to general reports on the situation in Bulgaria was not sufficient to exclude violations of Article 3 ECHR. Here again, the Immigration Office had neglected to perform a thorough investigation into the current situation in Bulgaria and only referred to outdated reports.[83] Moreover, the lack of interpreters in Bulgaria[84] and the procedural bias against Afghan nationals[85] have led the CALL to suspend transfers.
In 2018, 133 take charge and take back requests were made. However, only 3 transfers of single men were carried out.[86] This number refers only to the transfers carried out by the Immigration Office itself, as the latter is not aware of the number of asylum seekers that returned at their own initiative.
In 2019 only three cases were published on the website of the CALL concerning a Dublin transfer to Bulgaria. In all three cases the CALL suspended the transfer because the Immigration Office failed to conduct a thorough and individualised assessment of the situation in Bulgaria and the possible risks of a breach of Article 3 ECHR. Similarly to the judgements of the past years, the CALL judged that the Immigration Office uses outdated country information and did not take in account the issues that have been identified in Italy, e.g. the lack of interpreters and of legal assistance, the poor conditions in reception centres, and the use of violence by the authorities.[87]
Spain: In 2018 and 2019, reports surfaced signalling that Dublin returnees were excluded from reception in Spain and that there was an increased influx of migrants. In a decision of January 2020, the CALL suspended a transfer decision to Spain, finding that the Immigration Office violated its duty of care because it did not assess the reception conditions for Dublin returnees in Spain, which could possibly be problematic in the light of art. 3 ECHR.[88] In most cases, however, the CALL upholds the transfer decisions to Spain, even more so since the Spanish government released a guideline stating that Dublin returnees may not be excluded from the reception system.
In 2020, transfers to Spain were suspended in the light of the COVID-19 pandemic for some months. They resumed in the summer.
The situation of Dublin returnees
The Immigration Office 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 his or her asylum procedure terminated.[89] When this asylum seeker is then sent back to Belgium following a Dublin procedure and lodges an asylum application again, the CGRS is legally obliged to deem it admissible.[90] Nevertheless, depending on what stage of the asylum procedure they were at before leaving, these asylum seekers can be considered as subsequent applicants and are therefore left without shelter until the admissibility decision is officially taken.[91]
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 Criteria and Restrictions to Access Reception Conditions).[92]
[1] Source: Immigration Office.
[2] Art. 16 Dublin III Regulation.
[3] Art. 17 Dublin III Regulation.
[4] Art. 16 Dublin III Regulation.
[5] Art. 17 Dublin III Regulation.
[6] Art. 17(1) Dublin III Regulation.
[7] Art. 29(2) Dublin III Regulation.
[8] Art. 3(2) Dublin III Regulation.
[9] See for example the reports in French available at: https://bit.ly/2T8Lcj4.
[10] See e.g. Article 4-bis(1) and Article 51/5(3) Aliens Act. Note, however, that Article 3 Law of 21 November 2017 refers to the implementation of the Dublin III Regulation.
[11] Vluchtelingenwerk Vlaanderen, Contribution externe dans le rapport annuel de Myria 2018 : ‘Le droit à la vie privée et familiale dans le cadre du règlement de Dublin. Comment faire correspondre la pratique à la réalité des relations familiales?’, available in French at: https://bit.ly/2RSPlv3; Petra Baeyens and Eva Declerck, ‘Welk recht op een gezins- en familieleven binnen het Dublin-systeem’, Tijdschrift Vreemdelingenrecht, 2017/4, 389-400.
[12] CALL, Decision No 207272, 26 July 2018; CALL, Decision No 205854, 25 June 2018; CALL, Decision No 204600, 29 May 2018; CALL, Decision No 214659, 2 January 2019; CALL Decision No 215 169, 15 January 2019; CALL, Decision No 223809, 9 July 2019; CALL Decision No 239511, 10 August 2020 CALL Decision No 240517, 7 September 2020
[13] CALL, Decision No 198726, 25 January 2018.
[14] CALL, Decision No 198635, 25 January 2018.
[15] CALL, Decision No 180718, 13 January 2017; CALL, Decision No 198815, 29 January 2018; CALL, Decision No 204600, 29 May 2018.
[16] CALL, Decision No 234423, 25 March 2020; CALL, Decision No 230767, 22 December 2019
[17] CALL, Decision No 199262, 6 February 2018.
[18] CJEU, Case C-578/16, C. K. and Others, Judgment of 16 February 2017.
[19] See for example CALL, Decision No 215 169, 15 January 2019; CALL, Decision No. 223 809, 9 July 2019.
[20] CALL, Decision no 245144, 30 November 2020
[21] CALL, Decision No 205298, 13 June 2018; CALL, Decision No 194730, 9 November 2017.
[22] CALL, Decision No 206588, 5 July 2018.
[23] Article 51/3 Aliens Act.
[24] Article 57/6/1(i) Aliens Act.
[25] Myria, Contact meeting, 16 January 2019, available in French at: https://bit.ly/2Hj4pLJ, para 290.
[26] CJEU, Case C-670/16 Mengesteab, Judgment of 26 July 2017.
[27] Myria, Contact meeting, 22 November 2017, para 10.
[28] Article 71/3 Royal Decree 1981.
[29] Article 51/7 Aliens Act.
[30] ECtHR, Tarakhel v. Switzerland, Application No 29217/12, Judgment of 4 November 2014.
[31] Immigration Office, Letter to CBAR-BCHV in response to questions concerning the implementation of the Tarakhel judgment, 17 November 2014, unpublished.
[32] See e.g. CALL, Decision No 144544, 29 April 2015; No 155882, 30 October 2015; No 176192, 12 October 2016; CALL, Decision No 201167, 15 March 2018.
[33] CALL, Decision No 176046, 10 October 2016.
[34] CALL, Decision No 201 167, 15 March 2018.
[35] CALL, Decision No 203 865, 17 May 2018.
[36] CALL, Decision No 203 860, 17 May 2018.
[37] CALL, Decision No 207 355, 30 July 2018.
[38] CALL, Decision No 215 169, 15 January 2019.
[39] CALL, Decision No 217 932, 6 March 2019.
[40] CALL, Decision No 224 726, 8 August 2019.
[41] CALL, Decision No 203684 and CALL, Decision No 203685, 8 May 2018.
[42] Council of State, Decision No 245 799, 17 October 2019.
[43] CALL, Decision No 220401, 26 April 2019.
[44] EDAL, CJEU, Jawo, Judgment in case C-163/17, 19 March 2019, available at: https://bit.ly/3c9TxNq.
[45] Myria, contact meeting, 19.02.2020
[46] EDAL, CJEU, Jawo, Judgment in case C-163/17, 19 March 2019, available at: https://bit.ly/3c9TxNq.
[47] CALL, Decision No 237903, 2 July 2020 and Myria, Contact Meeting 16 September 2020, paragraph 16
[48] Article 10 Royal Decree on Immigration Office Procedure.
[49] Article 18 Royal Decree on Immigration Office Procedure.
[50] Article 10 Royal Decree on Immigration Office Procedure.
[51] Rapport intérimaire de la Commission chargée de l’évaluation de la politique du retour volontaire et de l’éloignement forcé d’étrangers, February 2019, available in French at: https://bit.ly/2TKdcwP, 53.
[52] Myria, Contact meeting, 21 December 2016, available at: http://bit.ly/2jGwYmM, para 29.
[53] Council of State, Judgment No 243.673, 12 February 2019.
[54] CJEU, case C-194/19, H. A. v. Belgium
[55] CALL, Case No 215.169, 15 January 2019.
[56] Article 39/2(2) Aliens Act.
[57] CALL, Decision No 165134, 31 March 2016, available at: http://bit.ly/2kZHlUV.
[58] CJEU, Case C-63/15 Ghezelbash and Case C-155/15 Karim v. Migrationsverket, Judgments of 7 June 2016.
[59] See e.g. CALL, Decision No 116 471, 3 January 2014 (suspension, Bulgaria) available in Dutch at: http://bit.ly/1FxO9LJ; Decision No 117 992, 30 January 2014 (annulment, Malta), available in Dutch at: http://bit.ly/1Gon1oq.
[60] See e.g. CALL, Decision No 201 167, 15 March 2018; CALL, Decision No 203 865, 17 May 2018; CALL, Decision No 203 860, 17 May 2018; CALL, Decision No 207 355, 30 July 2018; CALL, Decision No 215 169, 15 January 2019; CALL, Decision No. 217 932, 6 March 2019; CALL, Decision No. 224 726, 8 August 2019.
[61] Article 14(2) Acts on the Council of State.
[62] Myria, Contact meeting, 21 December 2016, available at: http://bit.ly/2jGwYmM.
[63] Myria, Contact meeting, 20 January 2021, para 90, available at https://bit.ly/3qRv6ua.
[64] Myria, Contact meeting, 17 January 2018, available at: http://bit.ly/2HCWN3B, para 10.
[65] Myria, Contact meeting, 20 November 2019, available at: http://bit.ly/2IZq1w9.
[66] Myria, Contact meeting, 18 November 2020, available at: https://bit.ly/3qUti3s
[67] Myria, Contact meeting, 20 January 2021, para 90, available at https://bit.ly/3qRv6ua.
[68] CALL, Decision No 205104, 8 June 2018.
[69] CALL, Decision No 208991, 6 September 2018.
[70] CALL, Decision No 210384, 1 October 2018.
[71] CALL, Decision No 138 940, 20 February 2015; No 144 488, 27 April 2015; No 144 400, 28 April 2015.
[72] Myria, Contact meeting, 22 January 2020, available in French at: https://bit.ly/2VhsVE6.
[73] See e.g. CALL, Decision No 200515, 28 February 2018; No 205 763, 22 June 2018; No 229 191, 25 November 2019; No 230 811, 30 December 2019; No 231 645, 22 January 2020; No 235 537, 23 April 2020; No 239 671, 13 August 2020.
[74] See e.g. CALL No 199 510, 5 February 2018; No 201 167, 15 March 2018; No 206 426, 2 July 2018; No. 224 129, 19 July 2019; No. 226 769, 26 September 2019; No. 228 640, 7 November 2019; No. 229 190, 25 November 2019; No 229 695, 2 December 2019
[75] CALL, Decision No 214701, 4 January 2019; No 224 129, 19 July 2019; No. 228 640, 7 November 2019; No 229 190, 25 November 2019.
[76] CALL, Decision No 229 266, 26 November 2019; No 229 695, 2 December 2019.
[77] CALL, Decision No 229 191, 25 November 2019; No 230 811, 30 December 2019.
[78] CALL, Decision No 238 756, 22 July 2020.
[79] CALL, Decision No 239 671, 13 August 2020; No 239 854, 19 August 2020.
[80] Myria, Contact meeting, 16 November 2016, para 34; Contact meeting, 17 January 2018, para 10.
[81] Myria, Contact meeting, 20 January 2021, para 90, available at https://bit.ly/3qRv6ua.
[82] CALL, Decision No 184 126, 21 March 2017.
[83] CALL, Decision No 185 536, 19 April 2017.
[84] CALL, Decision No 193 680, 13 October 2017.
[85] CALL, Decision No 185 279, 11 April 2017.
[86] Statistics provided by the Immigration Office, February 2019.
[87] Call Decision No 230 287, 16 December 2019; 228 795, 14 November 2019; 217 304, 22 February 2019.
[88] CALL Decision No. 231 762, 24 January 2020.
[89] Article 57/6/5.
[90] Article 57/6/2(1) Aliens Act.
[91] Myria, Contact meeting, 16 January 2019, available in Dutch at: https://bit.ly/2HeyRXu, para 175-180.
[92] Myria, Contact meeting, 21 June 2016, available at: http://bit.ly/2k3obi9, para 9.