Appellate Asylum and Migration Proceedings in Belgium: Challenges for the Best Interests of the Child Principle and Unity of Jurisprudence

Summary

INTRODUCTION

This chapter analyses two strands of case law of the Council for Alien Law Litigation (CALL or Council) in Belgium from the perspective of children's rights and the need to ensure unity of jurisprudence. On the one hand, it looks into appeals against decisions of the Commissioner General for Refugees and Stateless Persons (CGRS) denying a minor or his/her parent(s) the refugee and/or subsidiary protection status, in which the CALL undertakes a full judicial review. On the other, it scrutinises appeals against return orders delivered by the Immigration Office in the context of the durable solution procedure to the guardian of an unaccompanied minor (UNAM), for which the CALL only has an annulment competence.

First, in a quantitative analysis, the relationship between the outcome of the case (accepting or rejecting the appeal) and the language of the proceedings (French or Dutch) is analysed. Even though the necessary caution is warranted, the findings do reveal a different approach between the French-speaking and the Dutch-speaking Chambers, especially in the asylum case law. The second part of the chapter concerns a qualitative analysis, assessing the legal weight attached to the principle of the best interests of the child in both strands of case law. It is demonstrated, among others, that the legal weight attached to the best interests principle in the asylum case law of the CALL varies on a continuum from non-applicable/non-relevant, to a procedural application and (exceptionally) a substantive application. In the annulment cases under review, there seems more coherence in how the best interests principle is interpreted, which may be related to its incorporation in the relevant national legal provisions. These quantitative and qualitative findings of divergence within the Belgian asylum and migration case law involving (unaccompanied) minors raise questions from a children’s rights perspective, as well as from the perspective of legal certainty and unity of jurisprudence. This is an exploratory research, however: the research design does not allow formulation of definitive explanations of the findings. Only correlations are identified, no causal explanations are given. Where possible and relevant, hypotheses are formulated as to the interpretation of certain findings.

After a short presentation of the Council for Alien Law Litigation, the methodology adopted is discussed.