Dublin

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General

Dublin statistics: 1 January – 31 December of year 2022[1]

In 2022, the total number of outgoing take-charge and take back-requests was 15,078 (3.040 take-charge and 12,038 take-back requests). 13,758 of these requests were based on a hit from the Eurodac database. Out of which none for dependency reasons and four for humanitarian reasons.[2] 8,735 requests were accepted out of the total number of requests. The difference between the number of requests and the number of agreements is partly because the Immigration Office often sends requests to several countries simultaneously for a single person.

A total of 831 persons were transferred from Belgium to other Member States in 2022. The top 3 most transferred nationalities are Algeria (153 persons), Morocco (153) and Afghanistan (129). 740 of these transfers were carried out within six months, 88 within 12 months, and 3 within 18 months after the acceptance by the other Member State. The average duration of the Dublin procedure in 2022 (calculated from the day of the outgoing request until the moment of the effective transfer) was 92 calendar days.[3]

In 2022, there was a total of 2,787 incoming take charge and take back requests (468 take charge requests, and 2,319 take back requests), of which none for dependency reasons[4] and 22 for humanitarian reasons.[5] Out of the total of incoming requests, 1,696 were accepted, none for dependency reasons and 9 for humanitarian reasons. 357 persons were effectively transferred to Belgium.

According to available statistics,[6] the Immigration Office accepted 2,244 persons under the sovereignty clause.[7] In 2022, Belgium further became responsible “by default” for 3,615 persons: 3,433 persons were not transferred in time;[8] 182 (173 for Greece, 9 for Estonia) were not transferred due to deficiencies in the asylum or reception system which could lead to 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.[9]

Application of the Dublin criteria[10]

Since 2021 the Immigration Office has provided statistics about applying the Dublin criteria.[13] This overview does not give a breakdown of the Dublin criteria per article. It instead provides a more general breakdown of the outgoing and incoming take charge and take back requests. Information about a more detailed breakdown of the Dublin criteria per article, can be obtained through Parliamentary questions and questions during the monthly contact meetings, of which the reports are published online.[14] The Aliens Act uses the term “European regulation” to refer to the Dublin III Regulation criteria for determining the responsible Member State.[15]

In 2022 the Immigration Office sent 41 take charge requests for family reasons, 37 based on article 11, three based on article 8 and one based on article 9 of the Dublin-III Regulation. Nine requests were based on article 11 were accepted, and one was based on article 9. Only two transfers based on family reasons were realised in 2022.[16]

In 2022 the Immigration Office received 87 take charge requests for family reasons, out of which 60 were based on article 8, nine were based on article 9, four were based on article 10 and 14 were based on article 11 of the Dublin Regulation. The Immigration Office accepted 23 of these requests, all based on article 8 of the Dublin Regulation. 34 transfers based on article 8, two transfers based on article 9 and four transfers based on article 10 were realised in 2022.[17] Since the number of implemented transfers based on family reasons is higher than those based on family reasons  in 2022, some transfers were based on agreements given before 2022.

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.[18] 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, such as detention and reception conditions, guarantees in the asylum procedure and access to an effective remedy in the responsible state, and aspects of dependency.

Moreover, case law analysis emphasises the necessity of submitting medical attestations when invoking medical problems.[19] 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 recovery.[20] Likewise, mere cash payments to someone who still works in the home country are not enough to prove dependency, nor is proof of the intention to care for a family member during the asylum procedure or living with said family member.[21] 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.[22] 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.[23]

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 are 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 considered 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,[24] the CALL pays particular attention to the risk of inhuman and/or degrading treatment that a transfer in itself might entail for people with severe mental or physical illnesses, even if the responsible Member State does not demonstrate systematic flaws.[25] 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. Case law analysis shows that CALL uses a very strict standard concerning the nature of the illness and the evidence thereof.[26] For instance, suffering from epilepsy or a returning brain tumour does not meet the abovementioned standard.[27] Heavy reliance is placed on medical attestations for both the state of health and the impact of a transfer thereon.[28]

Procedure

In practice, all asylum seekers are fingerprinted and checked in the Eurodac database after making their asylum application with the Immigration Office.[29] In case they refuse to be fingerprinted, their claim may be processed under the Accelerated Procedure.[30] The CGRS stated that it has not used this legal possibility yet in practice and it does not keep statistics of these cases.[31] 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 the file must be transferred to the CGRS. 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.[32]

The Immigration Office has clarified that, in line with the CJEU ruling in Mengesteab,[33] 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’).[34]

A decision to transfer following an implicit 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.[35]

Individualised guarantees

Following the 2014 ECtHR ruling in Tarakhel v. Switzerland,[36] 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.[37] This practice ended in January 2019 following a letter from the Italian authorities stating that families with children would be accommodated in specific reception centres and that family unity would be respected. The Immigration Office considers this as sufficient guarantee.

The Immigration Office does not systematically ask for individualised guarantees for vulnerable asylum applicants. However, it sometimes requests guarantees when the continuity of an asylum seeker’s medical treatment has to be ensured in the country of destination. In the past, the CALL has overruled the Immigration Office’s practice in some cases, without this having a generalised effect on it.[38] Adopting a similar approach, the CALL ruled in 2021 that a transfer of a psychologically vulnerable asylum applicant to Italy might be in violation of article 3 ECHR. It further stated that the Aliens Office did not adequately consider the applicant’s vulnerability, especially not in light of the situation in Italy, where psychological support for applicants has decreased over the years.[39]

In 2022, some decisions of the Immigration Office to transfer an asylum applicant with a specific vulnerability to Croatia were suspended by the CALL, because no guarantees concerning the possibility to reintroduce an asylum application had been demanded beforehand. [40] In November 2022, the Croatian Ministry of Internal Affairs sent out a communication regarding its willingness to correctly apply the provisions of the Dublin III Regulation and to guarantee the possibility for applicants transferred under the Dublin III Regulation to reapply for international protection. However, the CALL ruled that this communication from the Croatian Ministry of Internal Affairs does not provide the same guarantee as individualised guarantees, which means that this communication is not sufficient to exclude any risk of a violation of Article 3 ECHR.[41]

Similarly, the CALL suspended the Immigration Office’s decision to transfer an applicant to Croatia due to the lack of individualised guarantees in a case of 5 December 2022.[42] This case concerns an applicant who was mistreated and arrested in Croatia. The applicant’s statements are supported by, among others, Croatia’s AIDA report. Moreover, for Dublin applicants, there is a risk of refoulement in Croatia, in the absence of individual guarantees from the Croatian authorities prior to transfer. Given that no individual guarantees were demanded from the Croatian authorities in this case, the risk of refoulement and a violation of Article 3 ECHR has not been ruled out, which is why the CALL suspended the Immigration Office’s decision.

Transfers

From the moment an applicant receives an annex 26quater, he or she is informed about the procedure in place to transfer the applicant to the responsible member state. The applicant is expected to collaborate with the transfer; in such case, a so-called ‘voluntary return procedure’ starts. If someone does not actively collaborate, this could be used to motivate their detention (see section on Grounds for Detention).

During the voluntary return procedure, 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).

Suppose 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. In that case, 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. The decision to extend the transfer deadline must be individually motivated in writing to make effective judicial review possible.[43]

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. The significant risk of absconding is defined in article 1, §2 of the Aliens Law. The CALL has further clarified this risk of absconding in its case law, which led to changes in policy from the Immigration Office:

• In a judgment of 26 April 2019, the CALL ruled that the choice of domicile at the lawyer’s address is insufficient to exclude a risk of absconding.[44] Referring to the CJEU’s Jawo judgment of 19 March 2019,[45] 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 reside at the lawyer’s address, so this 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 regarding 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’, to be filled in with their contact information and address. This had to be sent to the Immigration Office by mail within ten days. If the applicant failed to comply with this procedure, there was the risk that he would be considered absconded, which resulted in extending the transfer deadline from 6 to 18 months.[46] This practice came under heavy criticism by various organisations and lawyers since it denied applicants in the Dublin procedure the possibility to execute their right to a practical appeal. In addition, the practice was based upon a faulty interpretation of the Jawo judgment and its definition of ‘’absconding’.[47] The CALL confirmed this view in a judgment in July 2020,[48] ruling that, according to the Jawo judgment, there has to be an intentional element linked to a material element in order to consider someone as having 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 sufficient proof to indicate that the applicant was intentionally withdrawing from the voluntary return procedure. Based on the CALL’s motivation in this judgment, the Immigration Office decided to end this practice altogether.

Voluntary return procedure and extension of the transfer deadline

In 2022, the Immigration Office introduced a new practice in the voluntary return procedure, called the ‘ICAM-procedure’ (short for ‘Individual Case Management’). When someone receives an annex 26quater, this person will have to engage in the voluntary return procedure. Someone residing in the reception network can be asked to move to an ‘open return centre’. In this open return centre, the Immigration Office will organise interviews with the applicant concerning the voluntary return procedure. If the applicant gives indications that he does not wish to collaborate, the Immigration Office can decide to detain the applicant. If the applicant declines the transfer to the open return centre, the right to reception can be suspended. In this case, the applicant will reside outside of the reception network.

Someone residing on a private address or outside of an open return place will be invited for a first interview with an ‘ICAM-coach.’ The voluntary return to the responsible Member State will be discussed during this interview. If the applicant does not attend this interview, this might result in the withdrawal of material aid by Fedasil. If the applicant does attend this interview, but indicates that he does not wish to collaborate with the voluntary return procedure, he will be invited on a later date to discuss the voluntary return procedure once more. Suppose the applicant does not attend this second interview or does not wish to collaborate with the voluntary return procedure. In that case, this might result in the withdrawal of material aid by Fedasil as well. If an applicant decides not to collaborate with the ‘ICAM-procedure’, they could be re-invited by the Immigration Office, and be taken in detention with the aim of removal to the responsible member state.

This ‘ICAM-procedure’ has already been the subject of several decisions of the CALL. The Immigration Office is of the opinion that non-cooperation in this ‘ICAM-procedure’ (both in case of absence at an interview with the ‘ICAM-coach’ and in the expression of doubts about cooperating with the voluntary return) leads to absconding within the meaning of article 29.2 of the Dublin III Regulation.

The CCE has already overruled this reasoning of the Immigration Office several times.[49] For instance, in its decisions of 29 November 2022 and 23 December 2022, the CALL ruled that the reasoning of the Immigration Office is invalid because of two major reasons.[50] Briefly, the reasoning of the Immigration Office in these cases is based on the fact that any foreigner who repeatedly indicates that he or she will not voluntarily comply with the transfer decision should be considered as absconding.[51] The CALL ruled that, on the one hand, this argument is invalid because of the established case law of the CALL that applicants lose the interest in the appeal against the transfer decision when they voluntarily give effect to this transfer decision. In the context of a Dublin transfer, an applicant is not obliged to give voluntary effect to the transfer decision. The fact that the applicant has filed an appeal against the transfer decision must be considered. The CALL finds it lawful for the Immigration Office to seek voluntary execution of the transfer decision. Since the appeal procedure against the transfer decision is not suspensive, a forced transfer is possible. However, if an applicant does not give voluntary effect to the transfer decision, this element is insufficient to consider that person as absconding.

In contrast, it follows from the Jawo judgement that, in principle, there is ‘absconding’ only when the foreign national intentionally absconds from the authorities, which is presumed, unless there is evidence to the contrary, when the foreign national has left the residence assigned to him without informing the competent national authorities of his absence. It is undisputed that this presumption is not in doubt in these cases, as the applicants were still residing in the assigned place of residence at the time the contested decision was taken. The Immigration Office, therefore, has to prove that the applicant intentionally evaded the authorities and thus the transfer. It is undisputed that the mere circumstance that the applicant indicates that he will not voluntarily comply with the transfer decision is not sufficient for that purpose.

In a subsequent ruling, the CALL confirmed the above case-law in the case where an applicant had expressed doubts about voluntary return during a first interview with the ‘ICAM-coach’, and subsequently did not attend the second interview with the ‘ICAM-coach’.[52] The Immigration Office concluded from this situation that the applicant deliberately ensured that he remained out of the reach of the authorities responsible for the transfer to prevent the transfer or make the transfer more difficult. The CALL stated that it cannot be concluded from this situation that the applicant deliberately avoided the transfer, so it is clear that the required intentional element (Jawo judgment) is not fulfilled in this case. Indeed, the Immigration Office has not demonstrated that the mere fact that the applicant expressed doubts about voluntary return and did not show up for the second interview makes the transfer to the responsible Member State materially impossible.

In the defence memorandum, the Immigration Office sometimes provides an argument addressing the ‘risk of absconding’ as defined in Article 2(n) of the Dublin III Regulation and Article 1(2) of the Aliens Act. Regarding this argument, the CALL points out each time that the CJEU did not in any way state in its Jawo judgment that the term ‘absconding’ of Article 29(2) of the Dublin III Regulation should be interpreted as the way the Return Directive and the Return Manual define the term ‘risk of absconding’. Moreover, the term ‘risk of absconding’ further only appears in Article 28 of the Dublin III Regulation, which specifically refers to the cases in which the member states may detain the person concerned in order to secure transfer procedures following this Regulation when there is a significant risk of a person absconding. This argument of the Immigration Office is, therefore, not relevant in these cases.[53]

To address the above ambiguities regarding interpreting the concept of ‘absconding’, a legislative proposal to define the concept of “absconding” is currently being drafted in Belgium.

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 accepting a request until the actual transfer is 83 calendar days.

Personal interview

Indicators: Dublin: 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.[54] Lawyers are prohibited from being 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 others.[55] 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.[56] 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 relevant elements 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 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 explicitly asked about the detention conditions, the asylum procedure and the access to an effective remedy 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.[57] 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.[58]

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 minor’s best interest is considered. Based on their advice, the Dublin Unit of the Immigration Office decides if 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 precisely this appeal procedure that the ECtHR considered 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 its C-149/19 judgement of 15 April 2021 the CJEU ruled that an effective legal remedy has to consider any relevant elements that arose after the moment decision of “refusal of entry or residence” was given.[59] The Belgian Council of State further clarified the implications of this ruling on the legal remedy provided by the CALL. It stated that the CALL has to assess whether any element provided after the decision of “refusal of entry or residence” significantly impacts the execution of the Dublin Regulation.[60]

The CALL further verifies if the Immigration Office has respected all substantial formalities.[61] In 2016 this included cases where the Immigration Office ordered a Dublin transfer without indicating which responsibility criterion was applicable.[62] The amenability to the scrutiny of the correct application of the Dublin criteria was confirmed in the same year by the CJEU in the cases of Ghezelbash and Karim.[63]

The CALL also considers whether the sovereignty or protection clauses should have been applied by assessing potential breaches of Article 3 ECHR. In order to do this, the CALL considers 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.[64]

Following the Tarakhel judgment, in these suspension and action for annulment 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 the section on Dublin: Procedure).[65]

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 and 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.[66]

Legal assistance

Indicators: Dublin: 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 are entitled to a “pro-Deo” lawyer regarding the Dublin procedure. However, since assistance by a lawyer is not allowed during the Dublin interview, the bureau will not apply the general category of administrative procedures for legal assistance. There might, however, be an analogy with the category of written legal advice if the lawyer intervenes in any other way (written or otherwise) at the Immigration Office concerning a Dublin case.

Concerning the appeal, the general rules for free legal assistance in annulment and suspension petitions with the CALL apply (see the section on Regular Procedure: Legal Assistance).

Impact of the reception crisis

Single male applicants who do not receive shelter often have their ‘Dublin interview’ within a month after registration. Since these destitute applicants do not have any social assistant (which is provided in the reception centre), they often experience difficulties obtaining second-line legal assistance. As a result, some applicants have to go to their ‘Dublin interview’ without second-line legal assistance. This might have a negative impact on the applicant’s ability to explain their situation.

Suspension of transfers

Indicators: Dublin: Suspension of Transfers

Sometimes, transfers under the Dublin Regulation are not executed either following:

• An informal (internal) and not explicitly motivated decision of the Immigration Office itself; or
• A suspension judgment (in some rare cases followed by an annulment judgment) of the CALL.

Hungary: Since 2016, the Immigration Office stopped Dublin transfers to Hungary, and Belgium started to declare itself responsible for the concerned asylum applications.[67] In January 2023, the Immigration Office confirmed that no transfers were carried out to Hungary and that no Dublin-transfer decisions are currently taken for Hungary.[68] The Dublin procedure takes place, but Belgium declares itself responsible for the asylum application by applying article 17(1) of the Dublin Regulation.[69]

Greece: In January 2023, the Immigration Office informed us that no Dublin-transfer decisions are currently taken for Greece.[70] The Dublin procedure takes place, but Belgium declares itself responsible for the asylum application by applying article 17(1) of the Dublin Regulation.[71]

Bulgaria: In January 2023, the Immigration Office stated that no Dublin-transfer decisions are currently taken for Bulgaria.[72] The Dublin procedure takes place, but Belgium declares itself responsible for the asylum application by applying article 17(1) of the Dublin Regulation.[73]

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 country’s limited capacity of reception centres.[74] 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 would be accommodated in specific reception centres and family unity will be respected. The Immigration Office considers this as sufficient guarantees.[75] Since 2016, the CALL has upheld transfers to Italy for most asylum seekers,[76] although it has ruled against transfers in other cases.[77] 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.

For example, in a case of 5 May 2022, the CALL ruled that the Immigration Office did not provide sufficient motivation for its decision, because it did not take into account recent information showing that there are severe deficiencies in the reception system in Italy and limited access to the asylum procedure and that these deficiencies have been exacerbated by the current context (pandemic).[78] Indeed, it cannot be ascertained from the reasons given by the Immigration Office whether it analysed the impact on the reception conditions for asylum seekers and, if so, on the basis of what reasoning it considered that the pandemic had not led to structural deficiencies of such a nature that there was a real risk that the applicant would be subjected to inhuman or degrading treatment within the meaning of Article 3 ECHR.

In addition, in two decisions dated 12 October 2022, the CALL ruled that the Immigration Office had violated the principle of due diligence in the light of Article 3 ECHR, given that the Immigration Office’s decision refers to a ‘readmission’. In contrast, it is clearly a takeover, with the current situation in Italy apparently implying that access to the international protection procedure is problematic for asylum seekers when it involves a takeover.[79] Indeed, in these cases, there is a risk of being considered an irregular migrant, and therefore a risk of receiving a deportation order.

Croatia: In 2022, some decisions of the Immigration Office to transfer an asylum applicant with a specific vulnerability to Croatia were suspended by the CALL, because no individualised guarantees concerning the possibility to reintroduce an asylum application had been demanded beforehand.^[80] Further exposition of these matters can be found under the heading “Individualised guarantees“.

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 following an explicit and/or implicit withdrawal. If an asylum seeker has left Belgium before the first interview, he or she will have his or her asylum procedure terminated.[81] When this asylum seeker is sent back to Belgium following a Dublin procedure and lodges an asylum application again, the CGRS is legally obliged to deem it admissible.[82] Nevertheless, depending on what stage of the asylum procedure they were at before leaving, these asylum seekers can be considered subsequent applicants and therefore left without shelter until the admissibility decision is officially taken.[83]

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).[84] Because of the reception crisis, single male Dublin returnees are denied access to the reception network without receiving an individually motivated decision. They can register themselves on a waiting list, after which they will be invited to a reception place on a later date (for more information about the impact of the reception crisis on the right to reception, see Criteria and Restrictions to Access Reception Conditions).

[1] Information provided by the Immigration office, April 2023 and Immigration Office, ‘Procedure Dublin, Application du règlement (UE) n° 604/2013’, available at : https://bit.ly/3LbTmFg.

[2] Information provided by the Immigration Office, April 2023.

[3] Information provided by the Immigration Office, April 2023.

[4] Art. 16 Dublin III Regulation.

[5] Art. 17 Dublin III Regulation.

[6] Information provided by the Immigration Office, April 2023.

[7]  Art. 17(1) Dublin III Regulation.

[8] Art. 29(2) Dublin III Regulation.

[9] Art. 3(2) Dublin III Regulation.

[10] Information provided by the Immigration Office, April 2023.

[11] Articles 8, 9, 10 & 11 Dublin-III Regulation

[12] Articles 12.1, 12.2, 12.3, 12.4 & 14 Dublin-III Regulation

[13] Immigration Office, ‘Application of the Dublin Regulation 2022’, available in French: https://bit.ly/3maok6n and Dutch at: https://bit.ly/40JQJiB.

[14] See, for example, the reports in French available at: https://bit.ly/2T8Lcj4.

[15] 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.

[16] Information provided by the Immigration Office, April 2023.

[17] Information provided by the Immigration Office, April 2023.

[18] 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.

[19] 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.

[20] CALL, Decision No 198726, 25 January 2018.

[21] CALL, Decision No 180718, 13 January 2017; CALL, Decision No 198815, 29 January 2018; CALL, Decision No 204600, 29 May 2018.

[22] CALL, Decision No 234423, 25 March 2020; CALL, Decision No 230767, 22 December 2019

[23]  CALL, Decision No 199262, 6 February 2018.

[24] CJEU, Case C-578/16, C. K. and Others, Judgment of 16 February 2017.

[25] See for example CALL, Decision No 215 169, 15 January 2019; CALL, Decision No. 223 809, 9 July 2019.

[26] CALL, Decision no 245144, 30 November 2020

[27] CALL, Decision No 205298, 13 June 2018; CALL, Decision No 194730, 9 November 2017.

[28] CALL, Decision No 206588, 5 July 2018.

[29] Article 51/3 Aliens Act.

[30] Article 57/6/1(i) Aliens Act.

[31] Myria, Contact meeting, 16 January 2019, available in French at: https://bit.ly/2Hj4pLJ, para 290.

[32] Article 51/7 Aliens Act.

[33] CJEU, Case C-670/16 Mengesteab, Judgment of 26 July 2017.

[34] Myria, Contact meeting, 22 November 2017, para 10.

[35] Article 71/3 Royal Decree 1981.

[36] ECtHR, Tarakhel v. Switzerland, Application No 29217/12, Judgment of 4 November 2014.

[37] Immigration Office, Letter to CBAR-BCHV in response to questions concerning the implementation of the Tarakhel judgment, 17 November 2014, unpublished.

[38] 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; for further examples of case law, we refer to the previous versions of the AIDA report.

[39] CALL, Decision No 260 417, 9 September 2021.

[40] CALL, Decision No 278 106, 29 September 2022; CALL, Decision No 278 108, 29 September 2022;   CALL, Decision No 279 783, 7 November 2022; CALL, Decision No 280 105, 14 November 2022; CALL,   Decision No 280 106, 14 November 2022; CALL, Decision No 281 086, 29 November 2022; CALL, Decision No 281 327, 5 December 2022; CALL, Decision No 281 547, 7 December 2022; CALL, Decision No 281 730, 13 December 2022.

[41] CALL, Decision No 281 547, 7 December 2022.

[42]  CALL, Decision No 281 327, 5 December 2022.

_[43]  CALL, Decision No 203684; CALL, Decision No 203685, 8 May 2018 andCouncil of State, Decision No 245 799, 17 October 2019.

[44]  CALL, Decision No 220401, 26 April 2019.

[45] EDAL, CJEU, Jawo, Judgment in case C-163/17, 19 March 2019, available at: https://bit.ly/3c9TxNq.

[46] Myria, contact meeting, 19.02.2020.

[47] EDAL, CJEU, Jawo, Judgment in case C-163/17, 19 March 2019, available at: https://bit.ly/3c9TxNq.

[48] CALL, Decision No 237903, 2 July 2020 and Myria, Contact Meeting 16 September 2020, paragraph 16.

[49] See e.g. CALL, Decision No 278 146, 29 September 2022; CALL, Decision No 281 100, 29 November 2022; CALL, Decision No 282 524, 23 December 2022; CALL, Decision No 282 525, 23 December 2022; CALL, Decision No 282 966, 10 January 2023.

[50] CALL, Decision No 281 100, 29 November 2022; CALL, Decision No 282 524, 23 December 2022; CALL, Decision No 282 525, 23 December 2022.

[51] CALL, Decision No 281 100, 29 November 2022; CALL, Decision No 282 524, 23 December 2022; CALL, Decision No 282 525, 23 December 2022.

[52] CALL, Decision No 282 966, 10 January 2023.

[53] CALL, Decision No 278 146, 29 September 2022; CALL, Decision No 282 524, 23 December 2022; CALL, Decision No 282 525, 23 December 2022; CALL, Decision No 282 966, 10 January 2023.

[54] Article 10 Royal Decree on Immigration Office Procedure.

[55] Article 18 Royal Decree on Immigration Office Procedure.

[56] Article 10 Royal Decree on Immigration Office Procedure.

[57] 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.

[58] Myria, Contact meeting, 21 December 2016, available at: http://bit.ly/2jGwYmM, para 29.

[59] CJEU, case C-194/19, H. A. v. Belgium, 15 April 2021, available at: http://bit.ly/3JHeYqL.

[60] Council of State, Judgement No 252.462, 7 December 2021.

[61] Article 39/2(2) Aliens Act.

[62] CALL, Decision No 165134, 31 March 2016, available at: http://bit.ly/2kZHlUV.

[63] CJEU, Case C-63/15 Ghezelbash and Case C-155/15 Karim v. Migrationsverket, Judgments of 7 June 2016.

[64] 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.

[65] 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.

[66] Article 14(2) Acts on the Council of State.

[67] Myria, Contact meeting, 21 December 2016, available at: http://bit.ly/2jGwYmM.

[68] Myria, Contact meeting, 25 January 2023, page 9, available at https://bit.ly/3JKpIWk.

[69] Ibidem.

[70] Myria, Contact meeting, 25 January 2023, page 9, available at https://bit.ly/3JKpIWk.

[71] Ibidem.

[72] Ibidem.

[73] Ibidem.

[74] CALL, Decision No 138 940, 20 February 2015; No 144 488, 27 April 2015; No 144 400, 28 April 2015.

[75] Myria, Contact meeting, 22 January 2020, available in French at: https://bit.ly/2VhsVE6.

[76] 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.

[77] 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; CALL, Decision No 260 417, 9 September 2021; CALL, Decision No 272 323, 5 May 2022; CALL, Decision No 278 667, 12 October 2022; CALL, Decision No 278 668, 12 October 2022.

[78] CALL, Decision No 272 323, 5 May 2022.

[79] CALL, Decision No 278 667, 12 October 2022; CALL, Decision No 278 668, 12 October 2022.

CALL, Decision No 278 106, 29 September 2022; CALL, Decision No 278 108, 29 September 2022; CALL, Decision No 279 783, 7 November 2022; CALL, Decision No 280 105, 14 November 2022; CALL, Decision No 280 106, 14 November 2022; CALL, Decision No 281 086, 29 November 2022; CALL, Decision No 281 327, 5 December 2022; CALL, Decision No 281 547, 7 December 2022; CALL, Decision No 281 730, 13 December 2022.

[81] Article 57/6/5.

[82] Article 57/6/2(1) Aliens Act.

[83] Myria, Contact meeting, 16 January 2019, available in Dutch at: https://bit.ly/2HeyRXu, para 175-180.

[84] Myria, Contact meeting, 21 June 2016, available at: http://bit.ly/2k3obi9, para 9.