Arrest nr 260 333

Belgium: Administrative Court rules on exclusion clause for applicant who married and had sexual relations with his wife when they were both minors

On 7^th September 2021, the Council for Aliens in Belgium gave its decision in an exclusion case against the General Commissioner for Refugees and Stateless Persons. The case concerned a Syrian national who claimed asylum with his wife and child in 2018 after fleeing compulsory military conscription and the dangerous security situation in Syria. The applicant and his wife were cousins and married when they were refugees in Lebanon, at the request of her father who worried for her safety and the risk of rape that many of the unmarried girls in the camp faced. Although the authorities determined that avoidance of military conscription would constitute a well-founded fear of persecution as required in Article 1A of the Refugee Convention, they concluded that Article 1F excluded the applicant from protection under the Convention because of his marriage and sexual relationship with his wife when she was a minor which constituted a serious non-political crime.

Firstly, the Council emphasised that assessments for international protection must be made on an individual basis and that relevant authorities cannot use doubts about aspects of a case to exonerate them from verifying the fear of persecution or real risk of serious harm. Moreover, the Council confirmed that the credible statements and evidence provided by the applicant demonstrated a well-founded fear of persecution in his country of origin. The Council went on to analyse the statements from both the husband and wife in their personal interviews and deduced that their situation was not a forced marriage but rather a marriage arranged by the parents resulting from the specific situation both families were in. The Council therefore declared that is was unreasonable to determine a crime on the applicant who was a minor at the time himself. In regards to the sexual relationship between the couple, the Council determined that if there was a pressure on the applicant's wife to engage in their sexual relations this came from her own family and not the applicant. It elaborated that often in Arab culture, newly married couples are expected to start their own family quickly and that delay in this can result in shame for the wife's family as people could suspect she was not a virgin before the marriage.

The Council finalised by noting that the applicant and his wife were still married, lived together and raised their child together and that Article 1F is an exceptional provision with serious implications, and so should be applied with utmost caution. In light of this, the Council held that the applicant does not fall within the scope of Article 1F and due to the fact that his identity and nationality are not disputed and it has already been established that he has a well-founded fear of persecution in the event of return to Syria, he must be recognised as a refugee in accordance with Article 1A of the Refugee Convention and Article 48(3) of the Law on Aliens.

Based on an unofficial translation within the EWLU team

ELENA Weekly Legal Update 15 October 2021