M.S.S. v. BELGIUM AND GREECE JUDGMENT
25
133. Reasons must be given for negative decisions ordering the transfer
of asylum-seekers. When the transfer is to Greece, the reasoning for the
order to leave the country refers to the presumption that Greece honours its
Community and international obligations in asylum matters and to the fact
that recourse to the sovereignty clause is not obligatory under the Dublin
Regulation. In some cases, mention is made of the fact that the applicant has
adduced no evidence demonstrating the concrete consequences of the
general situation for his or her individual situation.
134. There are no accurate statistics for determining the extent to which
the Aliens Office applies the sovereignty clause. The positive decisions
taken do not specify whether the clause was applied. At most, it appears
from the data provided in the 2009 Annual Report of the Aliens Office that
in 2009 Belgium issued 1,116 requests to other member States to take
charge of asylum applications, 420 of which were to Greece, and that a total
of 166 applications were referred to the CGRS.
135. While efforts are being made to determine which State is
responsible, the alien may be held or detained in a given place for as long as
is strictly necessary, but for no longer than one month.
B. The Aliens Appeals Board
136. Decisions taken by the Aliens Office concerning residence may be
challenged by appealing to the Aliens Appeals Board. The Aliens Appeals
Board is an administrative court established by the Law of 15 September
2006 reforming the Conseil d’Etat and setting up an Aliens Appeals Board.
It took over the powers of the Conseil d’Etat in disputes concerning aliens,
as well as those of the Permanent Refugee Appeals Board.
137. Appeals against orders to leave the country do not have suspensive
effect. The law accordingly provides for the possibility of lodging an
application for a stay of execution of such an order. Such an application for
a stay of execution must be lodged prior to or, at the latest, at the same time
as the appeal against the order.
1. Stay of execution under the extremely urgent procedure
138. By virtue of section 39/82 of the Aliens Act, where imminent
danger is alleged, an application for a stay of execution of an order to leave
the country may be lodged under the extremely urgent procedure. The
Aliens Appeals Board will grant the application if it considers that the
grounds relied on are sufficiently serious to justify setting aside the
impugned decision, and if immediate execution of the decision is likely to
cause serious, virtually irreparable damage to the person concerned. The
application for a stay of execution must be lodged no later than five days,
but no earlier than three working days, following notification of the order to
leave the country. Prior to the entry into force on 25 May 2009 of the Law