Projet de loi modifiant l'article 57/12 de la loi du 15 décembre 1980 sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers.
General information ¶
- Submitted by
- PS | SP MR Open Vld Vooruit Purple Ⅰ
- Submission date
- Nov. 19, 2004
- Official page
- Visit
- Status
- Adopted
- Requirement
- Simple
- Subjects
- foreign national political asylum political refugee appeal
Voting ¶
- Voted to adopt
- CD&V Vooruit LE PS | SP Open Vld N-VA MR FN VB
- Voted to reject
- Ecolo
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Discussion ¶
Jan. 27, 2005 | Plenary session (Chamber of representatives)
Full source
Rapporteur Annick Saudoyer ⚙
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by Mr. The Deputy Prime Minister and Minister of the Interior presented this bill which aims to reform the procedure before the Permanent Refugee Appeal Commission. As an administrative court, it deals with appeals brought against decisions by which the Commissioner-General for Refugees and Statelessness rejects an asylum application as unfounded.
This reform is carried out in order to enable this committee to make duly motivated decisions within a reasonable time. It aims to reduce, for the asylum seeker, the delays and uncertainties related to a heavy and complex procedure.
It is articulated around the rule of the processing of requests by a judge sitting alone. However, it preserves the possibility for the latter to refer the case to a panel of three magistrates if it appears — during the examination of the application or during the examination of the appeal — that that case raises questions of principle, such as a derogation from a constant case-law or the emergence of a fundamental legal debate.
In order to preserve the quality of decisions, new stricter recruitment conditions will apply to these magistrates. The latter must have reached the age of 35 years, be licensed or doctors in law and prove a useful experience of five years in foreign law. However, an exception to these conditions is provided in order to allow the sole magistrate of the current body, not holding a license in law, to continue to sit. The specific experience she has acquired in this position, which she has held for many years, and that she has previously acquired with the High Commissioner for Refugees, fully justify such an exception.
In the general discussion, Mr. Arens points out that all the cases in suffering are pending before the French-speaking chambers of this jurisdiction. He is informed of the intentions of the government in order to fill the vacancies within these French-speaking chambers. Furthermore, he believes that even with comprehensive cadres and the use of single magistrates, the permanent refugee appeal commission will not be able to resolve the backdrop. It also calls for the extension of the frameworks and resources of this commission.
Furthermore, it notes that the use of single magistrates will jeopardise the unity of jurisprudence and proposes the creation of a general assembly and a conference of chamber presidents in order to ensure that unity.
by Mr. Anthuenis recalls the government’s efforts to control the asylum problem and grants his group’s support for this project.
by Mr. Van den Bergh highlights the necessary adaptation of the 1980 law on the access to the territory, residence, establishment and removal of foreigners. It emphasizes that the present draft will not solve the problems of backwardness to the Permanent Refugee Appeal Commission, the General Commissioner for Refugees and Stateless Persons, or the State Council, and it evokes the risk arising from a new procedure of regularization.
He proposes to combine this reform with that of the State Council. He also insists on the opinion of the State Council that asks the legislator to justify the principle of the single magistrate in the light of a possible control by the Arbitration Court. It specifies that the previous decisions of the Arbitration Court refer only to the procedure currently applied, and not to the principle of the magistrates sitting alone as a general rule.
He considers that a first examination by a three-member Chamber, which would eventually refer to a single-seated member, would better respond to the observations of the State Council. In addition to expanding the powers of the single magistrate, it suggests that more resources be allocated to this permanent appeal committee, for example by creating temporary chambers.
The question then arises whether the proposed procedure still provides for the possibility of hearing the interested parties and whether the files already filed will be completed following the new procedure. Finally Mr. De Man evokes the requirement of a ten-year term in the bar to advocate before the State Council, which had been mentioned during discussions on the reform of it.
The Minister replies that the measures taken by the previous government have allowed to limit the influx of asylum seekers. He also believes that the current situation makes a radical reform of the 1980 law ⁇ difficult and that such a reform would not necessarily offer more guarantees than the current system.
As regards delays in procedures, it makes the following clarifications.
As far as the Foreign Office is concerned, only individual regularizations are still a problem. The new Commissioner-General for Refugees and Stateless Persons should determine the means and policy he intends to allocate for this purpose. The draft reform of the State Council provides for the creation of temporary chambers responsible for removing the accumulated delay in three years. Furthermore, since this reform is still in the negotiation phase, it is not appropriate to wait for it to intervene to join the present project.
This bill will contribute to addressing the delays at the level of the Standing Refugee Appeal Commission. The cadres, both French and Dutch, will be completed and specialized lawyers will be assisted in appointment.
By reversing the current working method rather than extending the framework of the Permanent Refugee Appeal Commission, as would be required by ⁇ ining the current procedure, it thus responds to the government’s intention to decompose existing bodies and not to create new ones.
As regards the principle of a single judge in the Permanent Refugee Appeal Commission, it specifies that the Arbitration Court has already accepted the principle in its judgments 80 and 100/2002. Although the judgments in question concern a procedure that is not completely identical to the one proposed in this bill, the same reasoning presided over its elaboration.
With regard to the establishment of a general assembly and a conference of chamber presidents, the Minister declares that this will be settled by royal decree.
Regarding the project to impose a condition of old age on lawyers who plead before the Council of State, the minister specifies that it has been abandoned.
The discussion of Articles 2, 3 and 4 was not the subject of any observation. Articles 2bis and 2ter introduced by amendments no. 2 and no. 3 of M. Joseph Arens, the first to establish a general assembly within the Permanent Refugee Appeal Commission and the second to establish a conference of chamber presidents within the same commission, concluded with a withdrawal of the amendments on the Minister’s commitment to address these issues through royal decrees.
The whole project was adopted unanimously after the technical corrections.