Arrest nr. 216 474

Belgium – CALL delivers judgment in a case concerning the possibility of safe return to Gaza

On 7 February, the Council of Alien Law Litigation (CALL) ruled on the investigation requirements of the possibility for Palestinians to safely return to Gaza.

The applicant, a resident of Gaza city, was targeted by Hamas members after his brother left Palestine and applied for asylum in Belgium. Following increasing harassment, including detention, physical violence and a summons letter, the applicant left the area and arrived in Belgium, where he requested asylum. The Commissioner General for Refugees and Stateless Persons rejected his request claiming that the applicant's story was inconsistent and contradictory on key facts of his claim. On the risk of serious harm upon return, the Commissioner further found that the overall situation in Gaza is not as exceptionally precarious as to raise an issue of need for subsidiary protection. Moreover, it was concluded that access to Gaza through the Egypt-Gaza border (Rafah crossing) was safe, and that it was feasible that the applicant would not face any significant risks if he were to return.

The applicant challenged the Commissioner's decision. The CALL disagreed with the applicant's argument that the contested decision's reasoning was insufficient, but concurred with his claim that the duty to investigate was not complied with. In this connection, the Council conducted an assessment of the steps undertaken by the Commissioner in the exercise of his investigative duty.

According to the CALL, the Commissioner contradicted its own policy by dismissing the applicant's argument that the state of the Rafah crossing is of core importance in the assessment of international protection claims of Palestinians. The Council referred to its recent similar judgment, where the Commissioner had explicitly stated that the proof of Palestinian origin and the fact of a closed border crossing alone were sufficient elements to grant international protection. Consequently, the discussion on the current state of the Rafah crossing should remain a key element in the assessment of the real risk of serious harm for the person in question.

Such an assessment should be based on a thorough examination of the situation in the area taking into account the recent fundamental changes that have occurred, including varied levels of tension between the actors involved and the actual accessibility of the crossing. The Council observed that the Commissioner mainly consulted several outdated documents, which were refuted by the applicant's submission of more recent material, and further contacted a Palestinian diplomat and the Belgian consulate. These steps do not qualify as a thorough analysis of the situation, especially since there was no investigation of the treatment by Hamas of Palestinians who return from Europe. The latter point becomes even more essential in the light of the Palestinian authorities' inability to protect the travelers at the crossing.

The Commissioner was found to have breached the duty to investigate and the decision was annulled. The case was remitted back to the Commissioner for a new decision.

Based on an unofficial translation by the ELENA Weekly Legal Update. Many thanks to Tristan Wibault, ELENA Coordinator for Belgium, for bringing this case to our attention.

15-02-2019