The applicant is the appointed guardian of a minor child of Tunisian origin. The minor travelled from Tunisia to Belgium via Italy, with his father in March or April 2019. The minor’s father returned to Italy and left the minor residing in the home of an aunt. The minor’s aunt registered the minor’s stays in Belgium and on 12 April 2019 the applicant was appointed by the Federal Public Service as the minor’s guardian.  

On 21 May 2020, the applicant submitted a request for a residence permit on behalf of the minor. An authorised representative of the State Secretary for Asylum and Migration issued a decision to return the minor to Tunisia on 16 August 2021. The applicant was informed about this decision on 8 September 2021.  

The applicant submitted an appeal against the decision to return the minor on the basis that the decision of 16 August 2021 did not adequately assess how the minor’s sexual orientation would affect his reintegration in Tunisia. The minor informed the applicant that he was homosexual after the minor’s initial interview with the Immigration Office (IBZ). On 29 March 2021, the guardian contacted IBZ stating that there was additional information that needed to be added to the minor’s file. The applicant forwarded information, pertaining to the minor’s sexual orientation, to IBZ as per their request. In the email to IBZ, the applicant explained that the minor had stated that he knew that he was homosexual in Tunisia but did not dare to tell anybody as he felt like it was not possible to be LGBTQ in their culture. The applicant further stated that the minor had informed his mother who was open minded but encouraged the minor not to inform his father.  

In order to determine the best long-term solution for the minor, IBZ contacted the Belgian Diplomatic Post in Tunisia in order to organise a visit to the minor’s former residence where their parents and two brothers lived to carry a family assessment. During the family assessment, the minor’s parents were interviewed and asked questions about the minor’s life in Tunisia as well as his sexual orientation. The minor’s mother stated that she believed that the minor was not fully mature and that he would grow to have feelings towards women. The minor’s father did not respond directly to the question regarding his child’s sexual orientation but alluded to the idea that it could be attributed to a traumatic event that the minor had experienced when he was younger. The mother stated that the father did not accept the minor’s sexual orientation. Both parents agreed that they would welcome the minor back to their home, however, they stated that they would not be able to protect the minor from harassment. The brothers of the minor were not interviewed.  

In examining a durable solution for the minor, IBZ considered the other reasons for staying in Belgium put forward by the applicant including problems he faced regarding the language of his schooling in Tunisia, tensions between him and his brother, the loss of his grandmother with whom he had lived with until her death and his appreciation of daily life in Belgium. IBZ did not consider any of these to be grounds for the minor to stay in Belgium given that his family were willing to welcome him back to Tunisia, his family had the means to support him and there were several educational institutions available in the locality where the minor lived in Tunisia. IBZ outlined the guidelines noted in General Comment No 14 of the UN Committee on the Rights of the Child which reiterate the importance of family unity and stress that separation between parents and child should only be considered in exceptional cases. 

IBZ examined the sexual orientation of the minor as the final element of their analysis. IBZ acknowledged that the minor was LGBTQ and noted what the minor’s parents had stated during their interview. However, IBZ further noted that they only had one short statement from the applicant in relation to the minor’s sexual orientation and that the minor had not reported any previous experiences relating to his sexual orientation. IBZ concluded that the statement from the applicant could not be considered more important than the other factors they examined which all suggested that it was in the minor’s best interest to be reunited with the parents. Based on this analysis, the representative of the State Secretary for Asylum and Migration issued a decision stating that the minor must return to their country of origin in accordance with Article 61/18 of the Law of 15 December 1980. 

The Council for Alien Law Litigation (CALL) examined the details of the case and noted that the minor’s vulnerabilities were not adequately considered. In particular, CALL asserted that the family assessment was more nuanced than the decision suggests and underlined the fact that there was no information regarding the brother’s opinion despite the fact that the minor had informed IBZ that they had a problematic relationship. In light of this, CALL concluded that it was unclear how the minor would be welcomed within their nuclear family unit. Furthermore, CALL considered the country of origin information provided in the decision and determined that the situation of homosexuals in Tunisia was not sufficiently examined.  

CALL annulled the decision of 16 August 2021 of the authorised representative of the State Secretary for Asylum and Migration to order a deportation order.