An Angolan applicant requested a temporary asylum residence permit, and his application was rejected by the State Secretary for Justice and Security on 13 March 2023 because under the Dublin III Regulation, Belgium was the responsible Member State. On 27 June 2023, the District Court of the Hague seated in Rotterdam upheld the appeal filed by the applicant against that decision and ordered the State Secretary to issue a new decision. The State Secretary appealed the decision of the District Court to the Council of State.

The District Court considered that as a single adult man, the applicant would not be allocated a reception place immediately but would be placed on a waiting list. The District Court argued further that it is not clear from letters from the Belgian authorities submitted as evidence, that the number of emergency accommodation places is sufficient for the number of people on the waiting list. The State Secretary argued that the District Court disregarded the burden of proof, and that the applicant failed to put forth sufficient evidence that he risks ending up in a situation contrary to article 4 of the European Union Charter of Fundamental Rights and Article 3 of the European Convention on Human Rights (ECHR). The State Secretary argued further that the assessment must take into account the fact that the Belgian authorities are not indifferent to the reception situation in their country and stated that the uncertainty as to whether a foreign national will be given shelter after transfer is insufficient to assume that they will end up in a situation that entails very far-reaching material deprivation.

In its assessment of the case, the Council of State firstly recognised that in its application of the Dublin III Regulation, the State Secretary shall proceed on the presumption that the treatment of a foreign national in the requested Member State is in accordance with the provisions of the EU Charter and the ECHR, unless rebutted by the applicant on the basis of objective information which indicate systemic flaws in the asylum procedure and/or reception conditions of that Member State (CJEU, Abubacarr Jawo v Bundesrepublik Deutschland). This exception to the principle of mutual trust between Member States is laid out in Article 3(2) of the Dublin III Regulation.

The Council of State noted that the State Secretary must justify in a reasoned manner on the basis of the objective information submitted, that the presumption may still be relied upon in the case where an applicant disputes this (CJEU, C.K. and Others v Republic of Slovenia (Republika Slovenija). When the State Secretary cannot properly justify the applicability of the principle of inter-state mutual trust and legitimate expectations, it is obliged to carry out a further investigation in the requested Member State (see the judgment of the ECtHR of 21 January 2011,  M.S.S. v Belgium and Greece).

The Council of State also carried out an examination of the reception situation in Belgium using various sources including a report published by the European Union Agency for Asylum (EUAA), Roadmap Dublin Transfer Fact Sheet – Belgium, 24 April 2023. The Council of State considered that even though reception places were lacking and non-vulnerable applicants were placed on a waiting list which was temporarily frozen, there was no total stop to reception. In this regard, the council referred to a message on the Fedasil website dated 10 October 2023 which stated that applicants in the single male cohort will not immediately receive shelter, but will be gradually invited to the regular shelters. The Council also considered that those on the waiting list may stay in emergency accommodation and homeless shelters, and are entitled to medical and psychological support, as well as legal aid. The council also noted that various organisations offer food, clothing and other basic necessities. The Council referred to a judgment of the ECtHR on 31 October 2022 in the case Camara v Belgium (no. 49255/22) in which the ECtHR found that the Belgian authorities systematically failed to implement final court decisions, however, a violation of Article 3 of the ECHR was dismissed in this judgment. The council also noted efforts by the Belgian authorities to find and open new reception centres and temporary shelters.  

In light of the above findings, the Council of State acknowledged that shortcomings exist in the reception facilities in Belgium, however, it stated that this was not sufficient to conclude that the principle of inter-state mutual trust cannot be relied upon in respect of Belgium. The Council thus concluded that the appeal was well founded and annulled the judgment of the District Court of the Hague seated in Rotterdam.