Author
Following the 2017 reform, the concept of “first country of asylum” is defined in Article 57/6(3)(1) of the Aliens Act as a ground for inadmissibility. A country can be considered as a first country of asylum where the asylum seeker is recognised as a refugee and may still enjoy such protection, or otherwise benefits from “other real protection” in that country, including non-refoulement, provided that they can again have access to the territory of that country.
This first country of asylum concept has been mainly applied to refuse asylum applications from Tibetans having lived in India before coming to Belgium. However, India is not a signatory to the Refugee Convention. In the past, 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.[1] The CALL has repeatedly refused to refer a preliminary question to the CJEU on the interpretation of the concept of “real protection”.
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 it was possible to return to that country, they had a residence permit there and because of their socio-economic situation.[2]
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.
In 2021 the application of the first country of asylum led to the inadmissibility of the asylum application in 11 cases, 10 of those concerning Tibetans, having India as the first country of asylum and one concerning a person having a status other than the international protection status, in Greece.[3] No such figures were provided for 2022 and 2023.
[1] See e.g. CALL, Decision No 129 911, 23 September 2014; No 123 682, 8 May 2014.
[2] Myria, Contact meeting, 19 April 2016, available at: http://bit.ly/2jGUHTW, para 28.
[3] Myria, Contact meeting 19 January 2022, available in French and Dutch at: https://bit.ly/3sy9SFN, 37.