December 03, 2020
By Eleonora Frasca, PhD Researcher in EU Migration Law at UCLouvain, Member of EDEM (Equipe droit européen et migrations)
On 27 October 2020, the Court delivered its ruling in the case of M.A. v. Belgium (press release available in English). The case concerns the deportation of a Sudanese national, who was apprehended without documents by the Belgian police and detained pending removal, despite an order to suspend the measure. The Court found a violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention due to the State’s failure to assess the applicant’s protection needs and risk of exposure to treatment contrary to Article 3 in the event of his return to Sudan. The Court also found a violation of Article 13 (right to an effective remedy) in conjunction with Article 3 because the remedy he used was rendered ineffective due to his removal despite him having successfully sought to prevent it.
This judgement is important for three reasons. Firstly, it provides clarification on the real and effective access to asylum procedures, particularly in cases where applicants are held in pre-removal detention and thus in a situation of increased vulnerability. Secondly, the judgment sheds lights on the procedural guarantees surrounding the organisation of meetings between an applicant and the authorities of their country of origin with a view to positively identify and issue documents for their return, before the applicant’s protection needs have been assessed. Thirdly, the Court rejected the State’s arguments regarding the voluntary character of the applicant’s return to Sudan and provided guidelines to clearly distinguish voluntary departure from forcible return.
Facts and circumstances
The applicant arrived in Belgium irregularly in 2017 with the intention of reaching the UK. On 18 August 2017, M.A. was apprehended by the police and ordered to leave Belgian territory. On that same day, the applicant was brought to a migrant detention centre, where he lodged an asylum application. On arrival, M.A. was not informed in a sufficiently clear manner and in a language that he understood about the asylum procedure, nor did he benefit from the assistance of a lawyer. He completed a form in which only general questions about the risks in the event of return to his country of origin were asked. While exercising his right to be heard, M.A provided arguments against his removal, including evidence of the risk of ill-treatment in the event of his return, as well as the fact that he was a wanted person.
The little information provided by the applicant might be explained by the vague and incomplete nature of the questions asked. He later withdrew his asylum application, fearing that his statements would be shared with the Sudanese authorities by the Belgian authorities. A rumour about cooperation between the Belgian and Sudanese authorities began circulating in the detention centre following media coverage in the Sudanese press (§14-15) and was further amplified by social media coverage. M.A’s fears regarding his personal data being shared proved to have been well-founded. The picture, fingerprints, and the form he had completed were transferred to the Sudanese authorities, before any assessment of M.A.’s protection needs was conducted. M.A. was subsequently identified by the Sudanese authorities in the detention centre after which they delivered a laissez passer.
He only met with a lawyer on one occasion, on 30 September 2017, well after he had withdrawn his application. On 6 October, M.A met with a return officer from the Aliens Office. He refused to complete a new questionnaire because he did not trust the Belgian authorities. On 11October 2017, M.A. filed a request for release with the Leuven First Instance Court in which he invoked Article 3 ECHR to prevent his removal to Sudan. A public hearing was fixed for the 17October. He was later informed that he was scheduled to board a flight to Sudan the next day. Given the imminence of his removal, to prevent his return to Sudan, he filed a unilateral request, following an emergency procedure invoked in cases concerning a breach of an individual right (art. 584 of the Belgian Judiciary Code), to the President of the Court of First Instance of Brussels. By executive order, and supported by the threat of a fine (astreinte), the President prohibited the Belgian authorities from removing the applicant before a judicial review of the pre-removal detention order had taken place. Although the Aliens Office had initially seemed willing to respect the order by annulling M.A’s removal on the scheduled flight, the applicant was nevertheless brought to the airport and threatened with removal. M.A. then signed a statement declaring that he was voluntarily returning to Sudan. He was removed on a flight to Khartoum that same day in the afternoon.
The Belgian return policy of Sudanese migrants in 2017
The importance of this case is apparent by the depth of the factual evidence gathered, cited and relied upon by the Court (§ 47 – 53).To corroborate the facts, the Court directly quotes two documents: a report from Amnesty International and an investigation by the Belgian Asylum Authority. In the summer of 2017, a number of Sudanese nationals were subject to police checks, and half of them were apprehended and detained with a view of returning them to the country of first irregular entry or directly to Sudan. Upon invitation by the Belgian authorities, the Sudanese authorities visited the detention centres, interviewed the migrants, and issued several traveldocuments. This resulted in the effective repatriation of 10 Sudanese to Khartoum, including the applicant. This policy was heavily criticised by Belgian civil society and by members of the judiciary for the failure to respect the principle of non-refoulement and eventually led to a parliamentary debate and change of practice (§ 50).
The Court’s judgment and reasoning
The applicant’s grievance under Article 3 is twofold: firstly, M.A. had been effectively expelled by the Belgian authorities to Sudan, the country from which he fled, without a prior assessment of the risks faced in the event of return (1: § 89-105); secondly, the identification mission initiated by the Sudanese authorities increased the risk that the applicant would be subject to treatment contrary to Article 3 ECHR upon return (2: § 106-112).
1) The Court first holds that the fact that the applicant did not pursue the asylum procedure does not in itself constitute an argument for exempting the respondent State from its obligations under the Convention. States cannot carry out a removal without having first carried out a prior assessment of the foreseeable risk of treatment contrary to Article 3 upon return and the compatibility of the removal order with the principle of non-refoulement (§ 86).
A) The Court states that it a well-known fact that the general human rights situation in Sudan is problematic. The Belgian authorities failed to take into account, systematically and in an appropriate manner, the available country of origin information reports – to which they had full access – about the human rights situation in Sudan (§89-91). The Court noted that, in the first order of removal notified to the applicant, there was no mention of the human rights situation in Sudan or of the possible risks under Article 3. The same is true for any other order notified to the applicant beforehand.
B) Relying on its previous case law in the Grand Chamber cases of F.G. v. Sweden (commented here) and J.K. and Others v. Sweden (commented here), the Court explains that the applicant was not given a real and effective opportunity to seek international protection in Belgium, nor the opportunity to explain his personal situation or the risks that he would face if deported to Sudan (§92-105).
The Court recalls that, although in expulsion cases the burden of proof of the individual risks incurred in the destination country lies, in principle, with the applicant (§ 79, 80 and 81), those rules must not render the rights of the applicant protected by Article 3 empty of their substance. M.A. expressed his fears concerning his removal on several occasions: at the time of his arrest, during his meeting with the detention centre officer at the time of exercising his right to be heard, and via the form through which he declared his wish to lodge an application for asylum (§92).
The procedural shortcomings and practical obstacles, together with the vulnerable situation he faced in detention, left M.A. with no realistic prospect of effectively accessing asylum procedures and thus substantiating his personal fears (§ 105). The applicant faced a number of hurdles: he was not provided with sufficient information on asylum or on available remedies against removal orders; he did not have access to information in a language that he could understand; he did not have access to a lawyer at the beginning of the detention period, etc. The applicant’s inconsistent procedural attitude, including the withdrawal of his asylum application (§100), can also be explained by his feelings of mistrust towards the Belgian authorities, exacerbated by their cooperation with the Sudanese authorities.
2) By organising the identification mission from Sudan, the Belgian authorities aggravated the risk under Article 3 (§ 106-112). The Court considers that identification missions by the country of origin’s authorities – with a view to issuing travel documents to its own nationals – are not problematic per se. However, the identification of M.A. was not supported by sufficient procedural guarantees: the applicant was not informed in advance about the meeting and he was left alone with the Sudanese authorities during the interview. Even if the Aliens Office agent was present, it is uncontested that the officer was not in proximity of the applicant during the whole duration of the interview and that he was not fluent in Arabic, the language in which the interviews had been conducted.
The Court also found Belgium in breach of Article 13 in conjunction with Article 3 of the Convention because the applicant was deprived of an effective remedy despite having successfully initiated a claim to protection against arbitrary refoulement. The applicant combined a request for release with the unilateral request (combination of remedies), which could have, at least temporarily, suspended his removal. By prohibiting the deportation of the applicant until there was a final decision on the legality of his detention, the President of the Court of First Instance of Brussels had linked the possibility of repatriation of the applicant to the outcome of the proceedings on the judicial review of his detention (§ 26). Since the President’s decision was enforceable, and therefore binding on the State, the applicant was entitled to compliance with that decision in accordance with Article 13.
Some remarks on contemporary practices raised by the case of M.A. v Belgium
The outcome of the case of M.A. is revealing of two trends in contemporary practices of returns by EU Member States which are in breach of international human rights law: firstly, Belgium and other EU Member States, either through bilateral agreements or via the EU, informally cooperate with authorities of third countries with poor human rights records on both readmission and migration prevention (1); secondly, the voluntary nature of M.A.’s return to Sudan, in these circumstances, was firmly rejected and should be unless the existence of procedural safeguards and of a genuine consent to voluntarily return can be demonstrated (2).
Cooperating with third countries with poor human rights records
It should not be forgotten that the EU cooperation with Sudan, through the Khartoum Process and via the EU Trust Fund for Africa, raises serious issues in respect of human rights obligations (for a discussion see: Crowther & Plaut, 2019). In the context of cooperation on readmission, when there are no fully-fledged readmission agreements in place, cooperation is left to informal, non-public and non-transparent arrangements, often between the police authorities of the two countries involved in deportation and repatriation. Informal agreements are not uncommon.
Many parallel cases of informal – and secret – cooperation between EU countries and Sudan can be drawn, as witnessed by the police agreement between Italy and Sudan. Similar questions to those in the case of M.A. (i.e., the lawfulness of detention, treatment of applicants during their arrest, lack of domestic effective remedy for the complaints) are raised in the pending cases of A.E. and T.B. v. Italy which concern four Sudanese nationals arrested in Ventimiglia, transferred to the Hotspot of Taranto and subsequently placed on a flight to Sudan (for a discussion of informal external action see: Olivito, 2020).
Voluntary returns / forced compliance?
When organised from places of detention, voluntary returns can be highly problematic. As illustrated by the case of M.A., when the prospective returnees are held in detention, they are in a situation of heightened vulnerability and the prospect of release may highly influence their choices in such circumstances. In addition, being told that the deportation is inevitable or that there are no chances of release, being confronted with the country of origin’s authorities, being provided with inconsistent information provided, and fear and mistrust can, in the eyes of the returnee, all contribute to the impression that voluntary return is the only alternative to forced return. Under these circumstances, the consent eventually obtained to the voluntary return can, in no way, be seen to be genuine.
Attacking the admissibility ground regarding the victim status of the applicant, the Belgian government claimed that M.A. left Belgium voluntarily. However, the signature of the declaration of voluntary return cannot be seen as an act of will: M.A. was subject of a removal order, detained with a view to his expulsion, and the procedure followed by the Belgian authorities, at least in its initial phase, was that of a forced return (see Myria factsheet). Before a decision was taken in relation to his detention, and despite the enforceable order of the Court of suspending the removal, the Belgian authorities has shown zeal, efficiency and determination in their efforts to remove M.A. to Sudan. The police accompanied him to the airport, without the presence of his lawyer who was not even informed, and persuaded him to board the afternoon’s flight to Khartoum, on the same day on which his initial flight has been cancelled.
As witnessed by the case of M.A., States should not persecute people who cannot be removed on account of the risk of inhuman and degrading treatment upon return. When migrants are vulnerable because they are deprived of their liberty and due to the fear of being deported, State authorities should take more seriously their human rights obligation under the Convention instead of discouraging applicants from applying for asylum, detaining them, abusing their position of power or engaging in cooperation with third countries with poor human rights records.