Office of the Commissioner General for Refugees and Stateless Persons The Asylum Procedure in Belgium Information for Asylum Seekers This project has been achieved with the aid of the European Refugee Fund
the Office of the Commissioner General for Refugees and Stateless Persons Information for Asylum Seekers
Responsible publisher: Dirk Van den Bulck This brochure is published by the Office of the Commissioner General for Refugees and Stateless Persons and is available in French, Dutch, English, Russian, Arabic, Farsi, Lingala and Albanian. It was printed in December 2008 with vegetable-based ink on recyclable paper that meets the Ecolabel criteria. More information on the Office of the Commissioner General for Refugees and Stateless Persons in general and on the asylum procedure in particular is available at www.cgra.be This project was carried out with the support of the European Refugee Fund.
TABLE OF CONTENTS 1. Introduction 7 2. Distinction between refugee status and subsidiary protection status 8 3. During the procedure 10 3.1 At the Immigration Department 10 Filing and registering your asylum application 10 Preliminary examinations at the Immigration Department 11 Reception 12 Statement to the Immigration Department 13 Questionnaire 13 3.2 At the Office of the Commissioner General for Refugees and Stateless Persons 14 Hearing 14 Examination of your asylum application 15 Decision of the Commissioner General for Refugees and Stateless Persons 15 3.3 At the Aliens LitIGation Council 17 Your appeal against the decision of the Commissioner General for Refugees and Stateless Persons 17 4. After the procedure 19 Appeal to the Council of State 19 Leaving Belgium 19 Authorization to take up residence in Belgium 19 5. Additional information 20 Unaccompanied minors 20 Glossary 21 Authorities 23 Contacts 24
1. Introduction You have applied for asylum in Belgium. The purpose of this brochure is to provide you with an answer to questions you may have on this matter and to explain how the asylum procedure works in our country. With your application for asylum, you are requesting protection from the Belgian authorities because of problems you encountered in your country of origin. This is the country of which you are a national or, if you are a stateless person, the country of your habitual residence. The Belgian authorities will examine whether you need this protection: if you are granted protection, you can stay in Belgium and will be given authorization to take up residence in this country; if you are refused protection, you will not be able to stay in Belgium and will have to go back to your country of origin. Asylum is a form of international protection. Every foreign national on Belgian territory has the right to apply for asylum. The notion of application for asylum covers two forms of protection in Belgium: protection as a refugee and subsidiary protection. During the asylum procedure, the Belgian authorities will examine whether you are eligible for either of these two protection statuses. Protection as a refugee takes priority over subsidiary protection. The asylum procedure is absolutely confidential, which means that the information you provide to the asylum authorities will never be disclosed to the authorities of your country of origin. To assess who should be recognized as a refugee, Belgium applies the Geneva Convention of 28 July 1951. In Belgium the asylum procedure as such is organized by the Act of 15 December 1980 on access to the territory, temporary and permanent residence, and the expulsion of aliens (hereinafter referred to as the Aliens Act). This act also sets out the conditions that have to be met in order to be granted subsidiary protection status.
2. Distinction between refugee status and subsidiary protection status According to the definition in the Geneva convention, a refugee is any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself or herself of the protection of that country. According to the Geneva Convention, you can be granted refugee status if you meet the following criteria: You have a well-founded fear of being persecuted, i.e. fear of what you may suffer if you were to return to your country of origin; You may be persecuted for various reasons, i.e. because of your race, religion, nationality, membership of a particular social group or political opinion; You are outside your country of origin; You cannot avail yourself of the protection of the authorities in your country of origin, because these authorities do not or cannot provide such protection or, because of your fears, you do not want to request this protection. If you meet this definition, you will be recognized as a refugee and you can stay in Belgium for an indeterminate period of time. If you cannot be recognized as a refugee, the Belgian authorities will examine whether you qualify for subsidiary protection status. Subsidiary protection status is granted to a foreign national if there are serious reasons to believe that he would run a real risk of serious harm if he were to return to his country of origin, and that he cannot or, because of this risk, does not wish to avail himself of the protection of that country. Serious harm is defined as: a) death penalty or execution; b) torture or inhuman or degrading treatment or punishment of the applicant in his country of origin; c) serious threat to the life or person of a civilian owing to indiscriminate violence in case of an internal or international armed conflict. To qualify for the subsidiary protection status, you must prove that the following conditions required by law are met: You have well-founded reasons that indicate that you run a real risk of suffering serious harm if you return to your country of origin. Death penalty, torture or a threat to your life in case of war or civil war may, for instance, constitute such serious harm; The risk must be real, actual and personal; You cannot avail yourself of the protection from the authorities of your country of origin because these authorities do not or cannot provide such protection or, owing to the risk, you do not wish to avail yourself of this protection. 8
A foreign national may be excluded from the status of refugee or of subsidiary protection if he falls under one of the reasons for exclusion stipulated by the Geneva Convention and the Aliens Act. This would be the case, for instance, if there are serious reasons to assume that he has committed war crimes or crimes against humanity. In the event of medical problems, a special procedure (article 9ter of the Aliens Act) is provided. This procedure is designed for foreign nationals residing in Belgium who are suffering from a serious illness. They may be granted authorization to stay for medical reasons. Regardless whether the foreign national is residing legally or illegally in the country, an application can be filed with the Immigration Department in Belgium. He must be suffering from a serious medical condition for which no adequate treatment is available in the country of origin, which would entail a real risk to his life or physical well-being or a real risk of inhuman or degrading treatment owing to the lack of adequate treatment. For more information on this procedure, you can contact the Immigration Department directly.
3. During the procedure The authorities involved in processing your application for asylum in Belgium are as follows: The Immigration Department, which registers your application for asylum and carries out a certain number of preliminary investigations; The Office of the Commissioner General for Refugees and Stateless Persons, which examines the contents of your application for asylum and decides whether refugee or subsidiary protection status is to be granted; The Aliens Litigation Council to which you can appeal an unfavourable decision taken by the Immigration Department or by the Commissioner General for Refugees and Stateless Persons. The Council of State may intervene as a last resort if you lodge an appeal on points of law against an unfavourable decision taken by the Aliens Litigation Council. 3.1 At the Immigration Department Filing and registering your asylum application You can file your application for asylum at different places: At the border (e.g. at the airport) with the border authorities; On Belgian territory with the Immigration Department. You must do so within eight working days of your arrival in Belgium; In a penitentiary institution or a closed reception centre, with the director thereof. When you file your application for asylum, the Immigration Department will take your picture, your fingerprints, and an X-ray of your lungs. These personal data are registered by the Immigration Department. If you file your application at the border, you will be provided proof of this in the form of an Annex 25. If you file your application for asylum with the Immigration Department, in a prison or a closed reception centre, you will receive an Annex 26. The name and date of birth of your minor children are also noted on your Annex. From the age of 18 children must file a separate application for asylum. It is important to note that, although Annex 25 or Annex 26 constitute official proof that you have filed an application for asylum, they do not constitute a residence permit. When your application for asylum is registered, the language in which your asylum procedure will be handled is also determined. In Belgium, this will be either French or Dutch. The language of the procedure is the language in which the official will speak to you, in which correspondence is sent to you, and in which you may lodge any appeal against an unfavourable decision. If you speak French or Dutch, the interviews at the Immigration Department and during 10
the rest of the procedure will be held in that language. If you speak neither French nor Dutch, you can ask for an interpreter and the Immigration Department will determine the language of the procedure. The interpreter is independent and in no way involved in the decision making process. The interpreter translates everything you say and everything that the Immigration Department official says. During the registration of your application for asylum you will be asked to elect a place of residence in Belgium. This means that you must provide an official address where you can be contacted by the asylum authorities, e.g. the address of the reception centre where you are staying, your private address, or your lawyer s address (subject to the latter s consent). The asylum authorities will send you correspondence concerning your application for asylum (summons, requests for information, decisions) at the address of your elected place of residence. If you have filed your application for asylum at the border and you are accommodated in a closed reception centre, or if you have filed your application for asylum in prison, that place will be your elected place of residence by default. If you do not indicate an address, the Office of the Commissioner General for Refugees and Stateless Persons will be considered as your elected place of residence. As long as you do not elect another place of residence, all correspondence relating to your application for asylum will be sent to the office of the Commissioner General for Refugees and Stateless Persons where you will have to retrieve it personally. If you want to change your elected place of residence, you must inform the Immigration Department and the Office of the Commissioner General for Refugees and Stateless Persons by registered letter, or report personally to the Office of these authorities to file a change of place of residence form. The Change of Elected Place of residence form is available on the website of the Office of the Commissioner General for Refugees and Stateless Persons: www.cgra.be. Preliminary examinations at the Immigration Department Once your asylum application has been registered, the Immigration Department proceeds to a certain number of preliminary investigations that can be carried out on the same day your asylum application was filed. If this procedure takes more time, you will be asked to present yourself to the Immigration Department at a later date. 1. Determining the state responsible for examining your application for asylum: the Dublin Regulation. When you file your asylum application, the Immigration Department will determine whether Belgium is responsible for examining your application by virtue of certain criteria embodied in Council Regulation 2003/343/EC of 18 February 2003, known as the Dublin Regulation. The purpose of these criteria is to designate a single EU Member State (as well as Norway, Iceland or Switzerland) as being responsible for the processing of your application for asylum. If, during the Dublin examination, the Immigration Department ascertains that Belgium is responsible for examining your asylum application, the Belgian authorities will examine the substance of your application; If, in the course of the Dublin examination, the Immigration Department ascertains that another EU Member State is responsible for examining your asylum application (e.g. if that country granted you a visa or if you have already filed an application there), the Immigration Department will ask that country to take up/over your application; in that case Belgium is not responsible for examining your asylum application. Depending on whether you have applied for asylum at the border or on Belgian territory, you will receive either an Annex 25quater concerning the decision 11
of refusal of entry or of expulsion or return or an Annex 26quater accompanied by an order to leave the territory. You will also receive a laissez passer (Annex 10bis) with which you need to access the Member State responsible; If you do not agree with this decision, you can lodge an appeal for suspension and/ or annulment with the Aliens Litigation Council within thirty days; in this case, we recommend you to ask a lawyer for assistance. 2. Examination of multiple asylum applications A multiple asylum application refers to a situation in which a person has filed consecutive applications for asylum in Belgium. In such cases, the Immigration Department examines whether the new asylum application may be taken into consideration or not. For a new asylum application to be considered, you must provide new elements that could not yet have been produced during your previous application(s). If the Immigration Department ascertains that you have provided new elements in support of your asylum application, the Belgian authorities will examine your new application; If, in examining your multiple asylum application, the Immigration Department ascertains that you have not provided any new element, it will decide not to adjudicate your new asylum application. You will then receive an Annex 13quater. Depending on whether you applied for asylum at the border or on Belgian territory, the Annex 13quater contains an order of expulsion or return or an order to leave the territory; If you do not agree with this decision, you can lodge an appeal for suspension and/or annulment with the Aliens Litigation Council within thirty days; again, we recommend you to ask a lawyer for assistance. If Belgium is responsible for examining your asylum application and if your application is taken into consideration (in the case of a multiple application), the Immigration Department prepares your file to send to the Office of the Commissioner General for Refugees and Stateless Persons the authority that will actually assess your asylum application. Reception If you file an asylum application at the border and you do not have the necessary documents to enter Belgium (passport, visa), you will be held at the border while waiting for the subsequent processing of your application. If you file an application inside the territory, i.e. with the Immigration Department, you will be received by the Dispatching Service of the Federal Agency for the Reception of Asylum Seekers (Fedasil). The Dispatching Service will assign you to a reception facility (a community reception centre or individual accommodation). It is in this reception facility that you will receive material aid: accommodation, food, clothing, social, medical, psychological and administrative advice and support. You will receive no financial aid. In certain cases, the Immigration Department may decide to assign you to a closed reception centre. This will be the case, for instance, if the Immigration Department has to carry out preliminary investigations or if you refuse to cooperate with the examination of your asylum application. You can lodge an appeal against the decision assigning you to a closed reception centre with the Council Chamber of the Court of First Instance. This independent court will examine whether the detention is legal, i.e. if the Immigration Department has actually complied with 12
all the relevant conditions provided for by law. We advise you to request legal assistance to this end. Statement to the Immigration Department Once your asylum application has been registered, the Immigration Department will hear your statement. This in fact means that you have to answer questions on your identity, your nationality and the itinerary you followed to arrive to Belgium. If you have filed your asylum application together with your spouse or partner, you each will have an individual interview with an Immigration Department officer. Questionnaire Following your statement you will also have to complete a questionnaire about your asylum application. This questionnaire will allow the Office of the Commissioner General for Refugees and Stateless Persons to better prepare your hearing. You are advised to complete this questionnaire while giving your statement to the Immigration Department with the Immigration Department officer and interpreter present. In the questionnaire you can indicate that you wish to be heard by a male or female officer or interpreter at the Office of the Commissioner General for Refugees and Stateless Persons, and give reasons for this choice. Your request will be taken into account to the extent possible. Once you have completed your questionnaire you will be given a copy. If you wish, you can take the questionnaire with you to complete it on your own. You will not, however, benefit from the assistance of the case officer or of the interpreter. A decision cannot be taken on your asylum application unless you cooperate fully. This means that you must submit all the necessary documents and tell the truth throughout the procedure. Concealing information may lead to your asylum application being rejected. Remember to produce documents that can serve as proof for, e.g.: - Your identity; - Your nationality; - Your itinerary; - Any stay in another country; - Your reasons for applying for asylum. Do not get rid of any important document! This could have an impact on the assessment of your case. You can apply for the assistance of a lawyer free of charge (pro bono). The request must be lodged with a legal aid bureau. If you are staying in a reception centre, the social worker there can help you to file a request for a pro bono lawyer. You can also engage a lawyer of your own choice. In the latter case however, you will have to bear the costs. Your lawyer must be proficient in the language of the procedure (French or Dutch). Your lawyer cannot be present during the interview with the Immigration Department. On the other hand, he can attend the hearing at the Office of the Commissioner General for Refugees and Stateless Persons. 13
3.2 At the Office of the Commissioner General for Refugees and Stateless Persons Hearing The Office of the Commissioner General for Refugees and Stateless Persons is the central authority for the asylum procedure in Belgium. It is the sole authority competent to examine the contents of the asylum application. The Office of the Commissioner General for Refugees and Stateless Persons examines your asylum application in an independent and impartial manner. You will be summoned at least once during the procedure for a hearing at the Office of the Commissioner General for Refugees and Stateless Persons. The hearing consists of an interview with an officer of the Commissioner General for Refugees and Stateless Persons on the reasons for your asylum application. You will be sent the summons for this hearing at your elected place of residence. If you are residing in a reception centre, this notice will be sent by fax to the director of the centre who will pass it on to you. The hearing takes place at the Office of the Commissioner General for Refugees and Stateless Persons. If you are staying in a closed reception centre or in a prison, an officer of the Commissioner General for Refugees and Stateless Persons will come to interview you there. If you are in Belgium with your spouse or partner, you will be interviewed separately. The hearing is held in the language determined at the beginning of the asylum procedure. If you indicated to the Immigration Department that you need an interpreter, the Office of the Commissioner General for Refugees and Stateless Persons will provide you one. This person will accurately and faithfully translate your statements as well as those of the officer of the Commissioner General for Refugees and Stateless Persons. If you indicated in the questionnaire, which you completed at the Immigration Department, that you wanted to be interviewed by a male or female officer and/or interpreter at the Office of the Commissioner General for Refugees and Stateless Persons, your request will be taken into account to the extent possible. At the beginning of the hearing, the officer of the Commissioner General for Refugees and Stateless Persons will draw your attention to your obligations. It is important that you tell the truth because false or misleading statements may result in a rejection of your asylum application. You must also make every effort to prove your identity, your origin, your itinerary and the facts that you cite. During the hearing you can explain the reasons that forced you to leave your country. The officer of the Commissioner General for Refugees and Stateless Persons will ask you questions on this issue so as to be able to assess your fears if you were to return to your country of origin. If a case of force majeure, such as hospitalisation, were to prevent you from being present at the hearing, you must send to the Office of the Commissioner General for Refugees and Stateless Persons, by registered post, the document in proof thereof. You will also have to add a letter in which you explain all the reasons why you are applying for asylum. If you do not provide a valid reason for your absence within fifteen days of the scheduled hearing or you do not reply to a request for information within the following month, you may receive an unfavourable decision. Your lawyer can be present during the hearing. Another trusted person may also attend, but only if you request permission beforehand from the Office of the Commissioner General for Refugees and Stateless Persons. Neither the lawyer nor the trusted person may intervene during the hearing, but at the end they can elaborate on the reasons they believe validate your claim to refugee or subsidiary protection status. 14
The hearing at the Office of the Commissioner General for Refugees and Stateless Persons is a key moment in your asylum procedure. It is important to tell the truth, because false or falsified statements may lead to a refusal of your application. You must also do everything possible to prove your identity, origin, itinerary and the facts that you cite. The case officer of the Commissioner General for Refugees and Stateless Persons will write down your statements in a hearing report. This report will not be read back to you and you will not get a copy. You and your lawyer may however demand access to your asylum file. The Office of the Commissioner General for Refugees and Stateless Persons provides a crèche where your accompanying children aged 1 to 12 for whom you were not able to find minders on the day of the hearing, can be looked after. This will enable you to be more at ease as you will not have to tell your story in front of your children. All your statements will be treated confidentially. Examination of your asylum application After the hearing your asylum application is examined on the basis of two criteria: Are your statements truthful/credible? Does your asylum application meet the criteria of the Geneva Convention or are you eligible for subsidiary protection status? The case officers of the Commissioner General for Refugees and Stateless Persons in charge of examining asylum applications are university graduates specialized in asylum. They have an in-depth knowledge of the situation in the countries of origin of asylum seekers. They verify whether the documents and proof you have provided are authentic and pertinent. They also check your statements in the light of the general context of your country of origin, based on highly detailed information. To this end they are aided by a team of researchers who constantly monitor political developments and human rights in your country. Decision of the Commissioner General for Refugees and Stateless Persons After examining the case, the Commissioner General takes a decision on your asylum application. First, the case officer of the Commissioner General for Refugees and Stateless Persons who interviewed you draws up a proposal for a decision and submits this to a supervisor for verification. When the supervisor agrees, the proposed decision is subsequently submitted to the Commissioner General or one of his deputies to be signed. They take the final decision about your asylum application. This decision is sent to the address of your elected place of residence. Your lawyer or trusted representative also receives a copy. Depending on the decision of the Commissioner General for Refugees and Stateless Persons, you will find yourself in one of the following situations: 1. You are recognized as a refugee The decision granting refugee status is notified to you at your elected place of residence. Some fifteen days later, you will receive another letter from the Office of the Commissioner General for Refugees and Stateless Persons asking for your precise identity details. It is very important to reply to this letter, because it will be used to rectify any incorrect data (e.g. spelling, errors about your date and place of birth). About one month after recognition as a refugee, you will be summoned to the Office of the 15
Commissioner General for Refugees and Stateless Persons to get your refugee card. On presentation of this document, the municipal authorities of your place of residence will issue a residence permit authorising you to take up residence in Belgium for an unspecified period. If certain members of your immediate family wish to join you after you have been granted refugee status, they may be eligible for family reunification. The family reunification application will be processed by the Immigration Department. For more information about refugee status we recommend reading the brochure of the Office of the Commissioner General for Refugees and Stateless Persons entitled «You are recognized as a refugee in Belgium Your rights and obligations. This brochure is available (only in Dutch and French) on our website www.cgra.be 2. You have been granted subsidiary protection status If you do not meet the conditions to be granted refugee status, you may qualify for subsidiary protection status. The decision will contain the reasons why you were refused refugee status, together with notification that you have been granted subsidiary protection status. You are then authorized to stay in Belgium for a limited duration. By order of the Immigration Department, the municipality will issue a residence permit for one year, which is renewable each year. After five years from the date you applied for asylum, authorization to take up residence for a stay of unlimited duration is granted. If certain members of your immediate family wish to join you after you have obtained the right to stay for an unlimited period, they may be eligible for family reunification. The family reunification application is processed by the Immigration Department. You have the right to lodge an appeal with the Aliens Litigation Council within thirty days against a decision of the Commissioner General for Refugees and Stateless Persons to refuse refugee status and to grant subsidiary protection status. In the petition your lawyer must provide details as to why you think you qualify for refugee status. For more information on subsidiary protection status, see the brochure of the Office of the Commissioner General for Refugees and Stateless Persons entitled Subsidiary protection in Belgium Your rights and obligations. This brochure is available (only in Dutch and French) on our website www.cgra.be As a result of lodging such an appeal: Subsidiary protection status will not be granted yet nor will the residence permit be issued yet. However you can stay temporarily in Belgium for the duration of the appeal procedure. You run the risk of being denied subsidiary protection status. 3. You are refused both refugee status and subsidiary protection status If you do not meet the conditions for recognition as a refugee and you are also denied subsidiary protection status, you will receive a decision explaining the reasons for this refusal. You then have thirty days to lodge an appeal against this decision with the Aliens Litigation Council. If you do not yet have legal assistance, you are advised to contact the legal aid bureau of your place of residence promptly to ask for free legal assistance, or to engage the services of a lawyer at your own expense. 16
4. You are a national of an EU Member State and the Commissioner General for Refugees and Stateless Persons decides not to take your asylum application into consideration If you are a national of an EU Member State, the Commissioner General for Refugees and Stateless Persons may decide not to take your asylum application into consideration. This will be the case when the statements you have provided do not show that there is a well-founded fear of persecution or a real risk of serious harm. Otherwise your asylum application is taken into consideration. The Commissioner General for Refugees and Stateless Persons then decides, as for other countries, whether refugee status or subsidiary protection status is to be granted or denied. An appeal for annulment, possibly together with a petition for suspension if need be, before the Aliens Litigation Council is the only legal remedy against the refusal of the Commissioner General for Refugees and Stateless Persons to take your application into consideration. You have thirty days to lodge this appeal, for which you are advised to consult a lawyer. 5. Refugee status and/or subsidiary protection status is revoked or cancelled If it is established that you were wrongly granted refugee or subsidiary protection status, the Commissioner General may decide to revoke this status. This may happen for instance when you have obtained the status on the basis of false statements or forged documents. The Commissioner General may also decide to cancel the refugee or subsidiary protection status. This may occur, for instance, if the situation in your country of origin has undergone fundamental and sustainable change and you therefore no longer need the protection of the Belgian authorities. You have thirty days to lodge an appeal against a decision of withdrawal or cessation before the Aliens Litigation Council. 6. Your asylum application is no longer pertinent If you voluntarily renounce your asylum application and voluntarily return to your country of origin before receiving a decision or before you are regularised in the course of your asylum procedure, the Office of the Commissioner General for Refugees and Stateless Persons will note the renunciation of the asylum application, with your agreement. You will then receive a letter confirming your waiver. 3.3 At the Aliens Litigation Council Your appeal against the decision of the Commissioner General for Refugees and Stateless Persons 1. You have received a decision of refusal from the Commissioner General for Refugees and Stateless Persons: Refusal to be granted refugee status; Refusal to be granted subsidiary protection status; Revocation, cancellation or exclusion of your refugee or subsidiary protection status. You can apply, within thirty days, for a remedy by the Aliens Litigation Council which has full jurisdiction over these matters. 17
For the duration of your appeal and during the examination of your petition, you cannot be led back or forcibly removed from Belgian territory. You continue to receive material aid. For your appeal to the Aliens Litigation Council, you must lodge a petition in which you state the reasons why you do not agree with the decision of the Commissioner General for Refugees and Stateless Persons. The petition must meet certain formal conditions. It is therefore important that it be drawn up properly. To this end, you are advised to avail yourself of the services of a lawyer. You and your lawyer are then summoned for a hearing before the Aliens Litigation Council. Your presence or that of your lawyer is required. During the hearing, you or your lawyer can explain your arguments verbally. The contested decision may be upheld by the magistrate. This means that the magistrate considers the Commissioner General for Refugees and Stateless Persons to have taken a legitimate decision. The contested decision may be overturned: If refugee or subsidiary protection status was denied by the Commissioner General for Refugees and Stateless Persons, it may still be granted by the Aliens Litigation Council. If subsidiary protection status was granted, you can lodge an appeal with the Aliens Litigation Council if you wish to obtain refugee status. The Aliens Litigation Council may then overturn the decision of the Commissioner General for Refugees and Stateless Persons and grant you refugee status nonetheless, or uphold the subsidiary protection status or deny both statuses. If the Aliens Litigation Council considers that the decision of the Commissioner General for Refugees and Stateless Persons can neither be upheld nor overturned because the examination has not been thorough enough or substantial errors have been made, the decision is annulled. The Aliens Litigation Council refers the case back to the Office of the Commissioner General for Refugees and Stateless Persons, so that the latter can proceed with the examination and take a new decision. 2. You are a national of an EU Member State and the Commissioner General for Refugees and Stateless Persons has decided not to take your asylum application into consideration You can initiate an appeal for annulment, possibly together with a petition for suspension if need be, before the Aliens Litigation Council within thirty days. You and your lawyer will then be summoned for a hearing before the Aliens Litigation Council. Your presence or that of your lawyer is required. During the hearing, you or your lawyer can explain your arguments verbally. The Alien Litigation Council will then hand down a decision. In the event of an annulment and/or suspension procedure, the Aliens Litigation Council will decide on errors of procedure and not on the content of the asylum application. The Aliens Litigation Council may uphold or annul the decision of the Commissioner General for Refugees and Stateless Persons. If the Aliens Litigation Council annuls the decision of the Commissioner General for Refugees and Stateless Persons, the asylum case is sent back to the Office of the Commissioner General for Refugees and Stateless Persons for a new decision. If the Aliens Litigation Council upholds the decision of the Commissioner General for Refugees and Stateless Persons, then the latter s decision remains valid. After the final decision by the Aliens Litigation Council the asylum procedure is brought to a close. As for any administrative act, it is still possible to lodge an appeal on points of law before the Council of State (cf. infra). 18
4. After the procedure Appeal to the Council of State The decisions of the Aliens Litigation Council can be appealed on points of law only before the Council of State. This appeal, without suspensive effect, must be lodged within thirty days after the notification of the decision by the Aliens Litigation Council. There are preliminary proceedings (on the admissibility of your appeal), i.e. the Council of State verifies, within a short period, whether you have well-founded reasons that justify lodging an appeal. During the appeal on points of law, the Council of State verifies only whether the decision of the Aliens Litigation Council is compliant with the law. The Council of State therefore does not decide on the content of your case and cannot grant you refugee status. If the Council of State considers that the decision is illegal (i.e. if it annuls the decision) it refers the case back to the Aliens Litigation Council which must then take a new decision. If the Council of State rejects your appeal, the negative decision is upheld. There is no other appeal possible and your asylum application is rejected. Leaving Belgium When your application is definitively refused, you have to leave Belgium. You are responsible for your departure. If you wish to obtain assistance for your return, you can contact the International Organization for Migration, which will inform you about any financial and other aid available for your return. If you do not leave Belgium within the stipulated period, you may be forcibly deported. Authorization to take up residence in Belgium If the Commissioner General for Refugees and Stateless Persons or the Aliens Litigation Council has handed down a favourable decision, you will receive authorization to take up residence in Belgium. As a recognized refugee you will be issued a residence permit for an unlimited duration. If you are granted subsidiary protection status, you will receive a residence permit for a limited duration. Residing in Belgium as a recognized refugee or under subsidiary protection status entails a large number of rights in terms of employment, travel, acquisition of Belgian nationality, etc. Your status obviously entails obligations as well. Are you a recognized refugee? Then see the brochure published by the Commissioner General for Refugees and Stateless Persons entitled You are a recognized refugee in Belgium Your rights and obligations. This brochure is available (only in Dutch and French) on our website www.cgra.be Have you been granted subsidiary protection status? Then see the brochure published by the Commissioner General for Refugees and Stateless Persons entitled Subsidiary protection in Belgium Your rights and obligations. This brochure is available (only in Dutch and French) on our website. www.cgra.be 19
5. Additional information Unaccompanied minors When a minor asylum seeker is not accompanied by his parents or a legal guardian, he is considered an unaccompanied minor. This principle does not apply to minors from an EU Member State. If you are an unaccompanied minor, your asylum application is registered by an officer of the Immigration Department. The Guardianship service is informed accordingly. The Immigration Department draws up a sheet of particulars for the Guardianship service containing data on your identity, family, people you know in Belgium or abroad and all information that could prove useful for your identification. The Guardianship service verifies whether you are actually an unaccompanied minor. If there is any doubt about your age, a medical examination is requested. If you are actually an unaccompanied minor, you will be assigned a guardian who will assist you throughout the asylum procedure and will apply for a lawyer. The guardian will receive summonses, requests for information and decisions. You will receive a copy of all these documents too. The guardian will explain the asylum procedure and the decisions to you. He is always present when you are summoned before an asylum authority. Minors from an EU Member State are not assigned a guardian. The Immigration Department officer waits for the results of the medical examination, then invites you for an interview. Your guardian is present during this interview. The hearing at the Office of the Commissioner General for Refugees and Stateless Persons is organized in consultation with your guardian who will also attend this hearing, which is conducted taking into account your age and maturity. The case officers of the Commissioner General for Refugees and Stateless Persons in charge of hearing minors are specialists in asylum, who have been trained in dealing with minors. If you are a minor from an EU Member State, you will also be interviewed by a specialized officer. 20
Glossary Asylum seeker: A person who has left his country of origin and is requesting protection by filing an application for international protection. No final decision has yet been taken by the potential host country, i.e. it has not been established yet whether the asylum seeker meets the conditions required for obtaining refugee status or subsidiary protection status. Consequently, not every asylum seeker is recognized as a refugee at the end of the procedure, but every refugee was initially an asylum seeker. Refugee: An asylum seeker who has been granted refugee status and thus granted protection by a State. The refugee meets the conditions stipulated in the Geneva convention, i.e. a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Subsidiary protection: Protection that can be granted to a foreign national who does not meet the conditions to be recognized as a refugee, and who cannot be authorized to stay for medical reasons, but who runs a real risk of suffering serious harm if he were to return to his country of origin. In addition, the foreign national cannot or does not wish to avail himself of the protection of his country, and is not concerned by the exclusion clauses. Family reunification: Procedure that enables a foreign national, e.g. a recognized refugee or a beneficiary of subsidiary protection, to bring certain members of his family to Belgium under certain conditions. Family reunification applications are processed by the Immigration Department. Regularization: Procedure for applying for a residence permit of more than 3 months. Regularization falls within the remit of the Immigration Department. Undocumented or illegal immigrant: a person without a valid residence permit in the country in which he is, or who is staying there without authorization, either because he entered the country without authorization or because he entered legally and became irregular subsequently. Full jurisdiction appeal: Appeal filed with the Aliens Litigation Council against a decision of the Commissioner General for Refugees and Stateless Persons, with the exception of the refusal to take into consideration an application for asylum filed by a European Union national. In such an appeal, the Aliens Litigation Council decides on all the elements of the case, and decides in turn on the asylum application. It may nevertheless annul the decision of the Commissioner General for Refugees and Stateless Persons and refer the case back to it for a new examination and a new decision. This appeal has suspensive effect, i.e. the asylum seeker may not be forcibly removed during the examination thereof. Annulment appeal: Appeal lodged against a decision of the Commissioner General for Refugees and Stateless Persons (refusal to take into consideration an application for asylum filed by a European national) or of the Immigration Department, aimed at annulling it. Under this action, the Aliens Litigation Council carries out a pure assessment of law, i.e. verifies whether the decision taken is in compliance with the law, but does not decide on the merits of the case. This action does not have suspensive effect. eu Member States: as of 1 January 2007, the following countries were EU Member States: Germany, Austria, Belgium, Bulgaria, Cyprus, Denmark, Spain, Estonia, Finland, France, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, the United Kingdom, Slovakia, Slovenia, Sweden and the Czech Republic. CPAS/OCMW: Public Social Welfare Centre. Local Reception Initiative: under the aegis of the Public Social Welfare Centre: individual accommodation where asylum seekers receive material aid. 21
Material aid: Reception that meets material needs: housing, meals, medical care and socio-psychological assistance. Return and Emigration of Asylum Seekers Ex Belgium (REAB): voluntary return aid programme, organized by the International Organization for Migration. 22
Authorities Office of the Commissioner General for Refugees and Stateless Persons: Central authority for asylum procedure in Belgium. As an independent body, the Office of the Commissioner General for Refugees and Stateless Persons is charged with examining asylum applications and providing protection to foreigners who risk suffering persecution or serious harm if they were to return to their country of origin. The office of the Commissioner General for Refugees and Stateless Persons may grant, deny or revoke refugee or subsidiary protection status. It also issues civil status certificates to recognized refugees and the Stateless Persons. Immigration Department: An authority that assists the Minister for Migration and Asylum in managing immigration policy, i.e. matters governed by the Act of 1980 (access to the territory, residence, establishment and expulsion). In the asylum procedure, the Immigration Department is responsible for registering the application and of conducting the preliminary examinations, such as the Dublin examination and the examination of any multiple application, in order to determine whether the Belgian State will consider the application. Aliens Litigation Council: The only competent administrative authority to examine appeals against individual decisions taken by the Immigration Department or the Commissioner General for Refugees and Stateless Persons by virtue of the Act of 15 December 1980, i.e. all administrative decisions on asylum, authorization to take up residence, family reunification, visas, etc. Council of State: Supreme administrative body where an asylum seeker may lodge an appeal on points of law against an unfavourable decision by the Aliens Litigation Council. The Council of State verifies whether the procedure was carried out in accordance with the law but cannot take a decision on the merits of the case. It cannot therefore grant refugee status or subsidiary protection status. This appeal on points of law is subject to a preliminary leave to appeal procedure. Federal Agency for the Reception of Asylum Seekers (Fedasil): Federal agency that provides asylum seekers with material aid and organizes, in cooperation with its partners, reception and support. Fedasil also coordinates voluntary return programmes. International Organization for Migration: Intergovernmental organization that promotes humane and orderly policies relating to the movement of persons across borders. One of its tasks is to offer humanitarian assistance to migrants in need. For instance, it enables a rejected asylum seeker to obtain assisted return, in particular by providing him with an air ticket and assurances that his country of origin will not be informed of the reasons for his presence in Belgium. The International Organization for Migration in Belgium has established Return and Emigration of Asylum Seekers ex-belgium, a humanitarian programme to assist migrants who wish to return to their country of origin from Belgium or to emigrate to another country and who do not have the necessary means to do so. 23
Contacts Office of the Commissioner General for Refugees and Stateless Persons WTC II Boulevard du Roi Albert II, 26 A 1000 Brussels Telephone: 02-205 51 11 Fax: 02-205 51 15 E-mail: cgra.info@ibz.fgov.be Website: www.cgra.be Immigration Department World Trade Center, tour II Chaussée d Anvers, 59 B 1000 Brussels Telephone: 02-793 80 00 Fax: 02-274 66 91 Website: www.dofi.fgov.be Aliens Litigation Council Rue Gaucheret, 92-94 1030 Brussels Telephone: 02-791 60 00 Fax: 02-791 61 95 (French-speaking registrar) and 02-791 62 26 (Dutch-speaking registrar) Website: www.rvv-cce.be Council of State Rue de la Science, 33 1040 Brussels Telephone: 02-234 96 11 Website: www.raadvst-consetat.be Fedasil Rue des Chartreux, 21 1000 Brussels Telephone: 02-213 44 11 Fax: 02-213 44 22 Website: www.fedasil.be iom International Organisation for Migration Rue Montoyer, 40 1000 Brussels Tel. 02-282 45 60 Fax. 02-290 33 87 Website : www.belgium.iom.int 24
Office of the Commissioner General for Refugees and Stateless Persons WTC II Boulevard du Roi Albert II, 26 A 1000 Brussels Tel.: 02-205 51 11 Fax: 02-205 51 15 cgra.info@ibz.fgov.be www.cgra.be