Subsequent applications

Belgium

Country Report: Subsequent applications Last updated: 30/11/20

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The Immigration Office is also competent for registering subsequent applications i.e. the asylum seeker’s declaration on new elements and the reasons why he or she could not invoke them earlier, and transmit the claim “without delay” to the CGRS.[1] It can often take some time before these files are transmitted to the CGRS. These files are not considered a priority for the Immigration Office, who prioritises Dublin files.[2]

After the application is transmitted, the CGRS first decides on the Admissibility of the claim by determining whether there are new elements which significantly add to the likelihood of the applicant qualifying as a beneficiary of international protection.[3] The claim is deemed admissible where the previous application has been terminated on the basis of implicit withdrawal.[4]

The CGRS should take this decision within 10 working days after receiving the application from the Immigration Office. Due to a high volume of subsequent applications, the 10 days delay is often not respected.[5] If the person is in detention, this decision should be taken within 2 working days.[6] If the CGRS declares the application admissible, it continues with an examination of the merits under the Accelerated Procedure. The final decision should be made within 15 working days.[7] In 2019, significant delays in these procedures were noted in practice, from several months up to more than a year.

Where the subsequent application is dismissed as inadmissible, the CGRS should determine whether the removal of the applicant would lead to direct or indirect refoulement.[8]

An appeal to the CALL against an inadmissibility decision should be made within 10 days, or 5 days when the applicant is in detention.[9] The appeal has automatic suspensive effect, except where:[10]

  1. The CGRS deems that there is no risk of direct or indirect refoulement; and
  2. The application is either (i) a second application within one year from the final decision on the previous application and made from detention, or (ii) a third or further application.

Legal assistance is arranged in exactly the same way as with regard to first asylum applications. However, in practice some asylum seekers or lawyers themselves have experienced difficulties in obtaining “pro-Deo” assignments because the bureau for legal assistance required them to provide proof of the existence of new elements in advance.

An applicant does not have a right to remain on the territory even before the CGRS pronounces itself on admissibility in cases where:[11]

  1. The application is a third application; and
  2. The applicant remains without interruption in detention since his or her second application; and
  3. The CGRS has decided in the previous procedure concerning the second application that removal would not amount to direct or indirect refoulement.

A total of 4,363 applicants lodged subsequent applications in 2019:

 

Subsequent applicants by 6 main countries of origin: 2019

Country

Number

Afghanistan

1,154

Iraq

629

Somalia

181

Syria

171

Guinee

154

Albania

142

 

Source: CGRS

 

The evaluation of new elements is strictly applied in practice according to multiple actors and lawyers. However, the Belgian State has avoided condemnations by the ECtHR though friendly settlements. On 7 March 2019 for example, a decision on a friendly settlement was issued in a case concerning an Afghan applicant who was denied international protection due to lack of credibility.[12] His subsequent medical report had not been taken into account, leading to the rejection of his new application, as no new elements were found. The applicant complained of a violation of Article 3, in its procedural aspect, as well as Article 13, as the standard of proof required was excessive. He claimed the asylum authorities had failed to take his mental disorder into account, even though the lack of credibility was later based on this disorder. He also claimed that the CALL had placed the burden of proof entirely on him, regardless of the benefit of the doubt, and that the judge failed to duly examine available evidence (i.e. the medical report). The Belgian State successfully settled this case so as to avoid a (possible) negative decision by the ECtHR. The Belgian government guaranteed that the CGRS would take all evidence into account if a new asylum application is lodged, including the mental disorders of the applicant which seem to have been at the origin of a lack of credibility.

Another friendly settlement was found in a case of September 2019 regarding the evaluation of new elements in a subsequent application.[13] This case was filed by a Pakistani asylum seeker whose application for international protection had been rejected in November 2017 by the CGRS. After having provided evidence of the risk of persecution he faced due to his religion, and because a family member was murdered for this reason, while other family members had obtained international protection in Canada, the applicant claimed before the ECtHR that the Belgian asylum authorities had not thoroughly examined his situation, as required by Article 3 and 13 ECHR. He claimed that the asylum authorities rejected his application although they did not question the authenticity of the additional documents. The Belgian government reached a friendly settlement and guaranteed that the CGRS would examine a possible new asylum application in accordance with the procedural obligations laid down in Article 3 ECHR.

 


[1] Article 51/8 Aliens Act.

[2] Myria, Contact meeting of 21 November 2018, availabe in Dutch at:  https://bit.ly/2Rf4Sjo, para 26.

[3] Article 51/8 Aliens Act.

[4] Ibid, citing Article 57/6/5(1)-(5) Aliens Act.

[5] Myria, Contact meeting 19 September 2018, available in Dutch at: https://bit.ly/2MvKKc8, para 11.

[6]  Article 57/6(3) Aliens Act.

[7] Article 57/6/1(1) Aliens Act.

[8] Article 57/6/2(2) Aliens Act.

[9] Article 39/57 Aliens Act.

[10] Article 39/70 Aliens Act.

[11] Article 57/6/2(3) Aliens Act.

[12] ECtHR H.G.S. against Belgium, Application No 26763/18, 7 March 2019.

[13]ECtHR, A.A.against Belgium, Application No 51705/18, 26 September  2019.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation