The applicant, a Chinese national, had applied for asylum on 18 August 2022. The State Secretary submitted a take back request to Belgium based on the Dublin III Regulation. The request was accepted. The applicant contested the Dublin transfer and argued that the interstate principle of mutual trust cannot be applied because the Belgian authorities are not compliant with their obligations under the ECHR and that he will be at risk of being subject to treatment contrary to Article 3 ECHR.

The court dismissed the applicant’s argument that there is a difference in protection between the two countries regarding Christians from China. It found that that the applicant had not substantiated this claim and the fact that the Belgian policy is not publicly available did not change this outcome, as the applicant could have substantiated his position, for example, by providing case law or information from NGOs.

With regard to the interstate principle of mutual trust, the court considered that there are no indications that Belgian authorities will act contrary to the non-refoulement principle. The fact that the applicant’s previous asylum application was rejected is not a ground to consider that the Belgian authorities will act contrary to their international obligations.

The applicant further argued that he will not have access to the asylum procedure, but the court noted that the Belgian authorities have expressly guaranteed his access to the asylum procedure.

The applicant underlined a risk of not receiving any reception in Belgium and in support of his statement, he referred to the interim measures taken by the ECtHR on 31 October 2022 in case Camara v Belgium (no. 49255/22) and on 15 November 2022 in the cases between Msallem and 147 Others v Belgium. There are also other cases where interim measures were taken by the ECtHR although not published by the court, namely those of 21 November 2022 in the cases between Reazei Shayan and 189 others v. Belgium (49464/22), of 1 December 2022 in the cases between Amassri and 121 others v. Belgium (49424/22), and of 13 December 2022 in the cases between Al-Shujaa and Others v Belgium (52208/22). The court mentioned the ECtHR press release accompanying the interim measure in the cases of Al-Shujaa and 142 others v. Belgium concerning all the aforementioned interim measures concerning adult asylum seekers without shelter, despite an order to provide shelter from the Belgian court (Brussels Labor Court/Cour du travail/Arbeidshof). The ECtHR has ordered the Belgian government to comply with the order of the Belgian court and to provide the concerned applicants with housing and material assistance to meet their basic needs for the duration of the proceedings before the ECtHR.

The Court of the Hague mentioned that interim measures taken by the ECtHR does not equate to findings of systemic shortcomings in the asylum procedure and the reception system as to amount to the threshold of severity as defined by the CJEU in Jawo. However, in the present case, the large number of cases against Belgium and the applicants concerned (approximately 600) who do not have a shelter, along with initiatives from civil society organisations indicate a poor reception situation in Belgium. The court of the Hague mentioned that in the interim measures and in the additional reports there is no distinction between Dublin returnees and other asylum seekers and therefore the burden of proof on reception conditions shifted from the applicant to the State Secretary to demonstrate that the principle of interstate mutual trust can be applied in this case.

The court of the Hague annulled the transfer decision and referred the case back for re-examination.