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17/08/2022

BE: The Council of State granted subsidiary protection to a Palestinian applicant from Gaza due to the socio-economic situation and personal situation of the applicant

The Council of State granted  subsidiary protection to a Palestinian from the Gaza Strip on the basis of Article 48/4, § 2, b) Residence Act (Vw). Based on its previous case law, the Council of State ruled that although the socio-economic and humanitarian situation in Gaza is problematic, not every Palestinian from Gaza faces a real risk of serious harm upon return. Applicants for international protection from Gaza must demonstrate that they are specifically affected by the socio-economic and humanitarian situation, to the extent that they would be subject to inhuman or degrading treatment within the meaning of Article 3 ECHR. 

The Council of State noted in the present case the socio-economic consequences of the escalation of the conflict in May 2021 and the individual situation of the applicant, which he substantiates with documents.

The applicant submitted two documents with regard to his personal socio-economic situation, namely a Palestinian Authority document stating the amount he will receive as a pension and a document from an aid organization stating that the applicant and his family are dependent on humanitarian aid.

The Council of State decided that the applicant sufficiently demonstrated that in the event of his return he would end up in a situation of extreme poverty that would constitute inhuman or degrading treatment.

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17/08/2022

BE: The Council of State referred questions for preliminary ruling on derived rights of the family members of the beneficiary of international protection

Case registered before the CJEU under C-374/22

The applicant's first three applications for asylum were rejected and he submitted a fourth one in which he relied on the fact that he is the father of two children who were born in Belgium and who have been recognised as refugees, like their mother. His application was rejected as inadmissible and following appeals, the Council of State decided to stay the proceedings and addressed the following questions for preliminary ruling before the CJEU:

"Are Article 2(j) and Article 23 of “Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted” to be interpreted as applying to the father of two children who were born in Belgium and who have been recognised as refugees there, whereas Article 2(j) of Directive 2011/95/EU specifies that the family members of the beneficiary of international protection who are covered by Directive 2011/95/EU are such “in so far as the family already existed in the country of origin”?’

‘Does the fact relied on by the appellant at the hearing, that his children are dependent on him and that, according to the appellant, the best interests of his children require that international protection be granted to him, mean, in the light of recitals 18, 19 and 38 of Directive 2011/95/EU, that the concept of family members of the beneficiary of international protection, covered by Directive 2011/95/EU, is extended to a family that did not exist in the country of origin?’

– ‘If the first two questions referred for a preliminary ruling are answered in the affirmative, can Article 23 of Directive 2011/95/EU, which has not been transposed into Belgian law to provide for the granting of a residence permit or international protection to the father of children who were recognised as refugees in Belgium and who were born there, have direct effect?’

– ‘If so, does Article 23 of Directive 2011/95/EU confer, in the absence of transposition, on the father of children recognised as refugees in Belgium and born there the right to claim the benefits referred to in Articles 24 to 35, including a residence permit allowing him to reside legally in Belgium with his family, or the right to obtain international protection even if the father does not individually qualify for such protection?’

– ‘Does the effectiveness of Article 23 of the Qualification Directive, read in the light of Articles 7, 18 and 24 of the Charter of Fundamental Rights of the European Union and recitals 18, 19 and 38 of the Qualification Directive, require Member States that have not amended their national laws so that family members (within the meaning of Article 2(j) of that directive or in respect of whom there are particular circumstances of dependency) of the beneficiary of such status may, if they do not individually qualify for such status, claim certain benefits, to grant those family members the right to derivative refugee status so that they may claim those benefits in order to maintain family unity?’

– ‘Does Article 23 of the Qualification Directive, read in the light of Articles 7, 18 and 24 of the Charter of Fundamental Rights of the European Union and recitals 18, 19 and 38 of the Qualification Directive, require Member States that have not amended their national laws, so that the parents of a recognised refugee can claim the benefits listed in Articles 24 to 35 of the directive, to [allow those parents to] enjoy derivative international protection in order to give primary consideration to the best interests of the child and to ensure the effectiveness of that child’s refugee status?

 

 

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