The Constitutional Court annulled parts of the amended Belgian legislation, namely the Act of 21 November 2017 amending the Residence Act and the Reception Act, which entered into force on 22 March 2018. The Court decided as follows:

1. Article 53 of the Residence Act was clarified, thus refugees cannot be prosecuted based on illegal entry or stay,

2. The obligation laid down in Article 48/6(2)(1) for applicants to deposit the original documents establishing his or her identity or nationality constitutes a disproportionate interference with the right to respect for the private life of the applicants concerned. The provision was annulled.

3.The Court clarified the provision in Article 48/6, according to which the CGRS may request information from an applicant for international protection that is on electronic format. The Court stated that the decision for such a request must be communicated in writing or orally to the applicant or his lawyer. In addition, the competent authorities may only consult the elements laid down by the applicant at the request of those authorities. The competent authorities shall not be authorised to carry out searches themselves on the electronic device handed over to them.

4. Articles 57/6/4 and 74/5 concerning detention at the border was interpreted. An applicant can be detained at the border and the CGRS may initiate an admissibility procedure for an application submitted at the border. The detention is justified for purposes of investigation carried out by the authorities on admission to territory.

The applicant who is detained at the border may lodge an appeal before the council chamber of the territorially competent criminal court, thus being guaranteed the right to access to a court.

The decision on admissibility of the application for international protection submitted at the border must be taken within a reasonable period of time, in this case this is four weeks. The starting point is the date on which the application was submitted (CJEU, judgments C-924/19 PPU and C-925/19 PPU, FMS and Others of 14 May 2020.

5. Although the CGRS may not invite an applicant for international protection to a medical examination in cases where the applicant raises a medical issue, however, the CGRS refusal must be justified in accordance with Article 62(2)(1). A court can not force the CGRS to proceed to a medical examination, but if the reasons of the CGRS for not conducting it are found inacceptable, this results into the organisation of a medical examination.

6.The CGRS is no longer allowed to issue the minutes of hearings only at the time of the decision for applications dealt with as a matter of priority and for applications in admissibility proceedings.

Moreover, the period of eight working days from the service of the copy of the notes of the personal interview is sufficient to communicate to the CGRS comments in connection with the notes of the personal interview. In addition, the applicant has the opportunity to submit observations up to the working day preceding the day on which the decision was taken.

7. The Article 57/7, §3 provides that the CGRS may keep certain data of a person confidential if it bases its decision on information obtained from that person, precisely the name, contact details, activities or function of the person. The Constitutional Court annulled this provision. Consequently, the CGRS may no longer keep confidential the name, contact details, activities or function of a person who has provided essential information for making a decision. The applicant's lawyer must have access to all the information in the applicant's file on the basis of which a decision was taken.

8. On the reduction on appeal deadlines, it found that is not excessive from 15 to 10 days and the applicants can benefit from legal assistance from the moment the application is submitted. On the 5 days appeal deadline in a case where a detained applicant contested an inadmissible decision on a subsequent application, the Court also ruled that it is justified because:

• the applicant has been detained;
• the action relates only to the newness or otherwise of the elements submitted by the applicant in support of his or her next appeal;
• the applicant is entitled to the assistance of a lawyer and an interpreter, so that the appeal with full jurisdiction can be regarded as an effective remedy.

9. Applicants who submit subsequent application in the year following the rejection of the first application, without delaying or preventing the execution of a removal measure, are denied a suspensive remedy. The Court stated that it may happen for applicants to rely on new elements or facts in the first year in a subsequent application, and those applicants may bring an action for suspension in cases of extreme urgency which has suspensory effect.  As such, the applicant can introduce before the CALL a request for suspensive effect as urgent against a measure of return. For the purposes of the suspensive appeal, the applicant shall provide information on elements that have happened in the year after the rejection of the asylum application, and which elements would increase in a significant way the probability that the applicant could benefit of international protection.

10. The Court clarified that the safe third country concept may be applied to unaccompanied minors as applicants when the principle of best interest of the child is respected.

11. It clarified also that the accelerated procedure can be applied to unaccompanied minors only when the applicant:

• comes from a safe country of origin
• or has made an inadmissible subsequent application
• poses a threat to national security or public order

12. The CGRS cannot declare a subsequent application inadmissible on the sole ground that the person concerned did not submit the elements justifying the submission of his next application during the previous procedure. The CGRS must rule on the risk of refoulement and thus check whether these new elements significantly increase the chances of the applicant to be granted international protection.