The two faces of the moon of a decision condemning the 2017 cooperation between Belgium and Sudan.
Art. 3 ECHR – Burden of proof – Risk assessment – Cooperation with third countries – Missions of identification – Principle of non-refoulement – Due diligence obligations
In this case, the ECtHR ruled that Belgium had not respected its procedural obligations under Article 3 in relation to a Sudanese national who was deported to Sudan following the visit of a Sudanese identification mission. This decision should be welcomed in that it grants significant importance to the vulnerability of irregular migrants and thus further endorses a greater responsibility for national authorities to investigate risks under Article 3, including in relation to individual situations. However, this contribution contends that the Court missed the opportunity to take a more radical approach towards identification missions from the migrants’ country of origin. It argues that this method of migration management can constitute a novel form of violation of the principle of non-refoulement and claims that the manner in which the identification mission was organised is incompatible with the obligations of due diligence lying on Belgium.
Marion de Nanteuil
A. Facts and Ruling
In September 2017, Belgium’s Secretary of State for Asylum and Migration Théo Francken welcomed in Brussels a Sudanese delegation, mainly composed of members of the National Intelligence and Security Service (NISS), the Sudanese secret services. The purpose of the mission was to identify Sudanese nationals who were illegally staying in Belgium, issue valid travel documents, and repatriate them to Sudan. On 13 October 2017, the applicant, who was among the Sudanese nationals identified by the mission, was forced to board a plane to Khartoum by the Belgian authorities.
Three years later, in the case of M.A. v Belgium, the European Court of Human Rights (ECtHR) found that Belgium violated Article 3 of the European Convention on Human Rights (ECHR) as it failed to assess the applicant’s risks to be exposed to inhumane and degrading treatment and/or torture if he was returned to Sudan. The Court also found that Belgium was in breach of Article 13 ECHR in conjunction with Article 3 because the applicant’s deportation to Sudan rendered ineffective the remedy he used to prevent it.
1. Domestic proceedings
The applicant, M. A., is a Sudanese national allegedly originating from South Kordofan, a region of Southern Sudan that has been at war since 2012. He had entered Belgium illegally at an unknown date, with the intention of reaching the United Kingdom. In August 2017, after he had been issued with several orders to leave Belgian territory, he was transferred to a detention centre for illegal migrants pending his removal.
On 21 August 2017, the applicant shared with the detention centre’s staff that he was wanted in Sudan and that he feared ill-treatments if he went back to his country of origin. On 6 September 2017, he filed an application for asylum in Belgium. On 11 September 2017, he withdrew the application after he learned, through the media, that Belgium was about to cooperate with Sudanese authorities in order to identify and repatriate Sudanese nationals who had illegally entered Belgium. On 27 September 2017, members of the Sudanese delegation interviewed the applicant. He claims that he was left alone, without the assistance of a lawyer or a representative of the Belgian authorities. Following this meeting, he received a travel document to return to Sudan.
He filed a petition for release before the tribunal of first instance of Leuven on 11 October 2017 with the assistance of a lawyer. While he was informed that his case would be examined by the court on 17 October 2017, on 12 October 2017 he was notified that he would be repatriated to Sudan on 13 October 2017. On the basis of Article 584 of the Belgian Judiciary Code, which allows presidents of tribunals of first instance to adjudicate unilateral procedures in cases of emergency, he immediately filed a unilateral request in front of the President of the first instance tribunal of Brussels (Dutch-speaking section). He sought to obtain the suspension of his deportation pending the judgment of the tribunal of Leuven. Although the executive order by the President of the Brussels tribunal prevented the Belgian authorities from expelling M.A. to Sudan pending a final decision on his detention, he was forced to board a plane to Khartoum on 13 October 2017. Before leaving, he was persuaded to sign a document in which he declared that his return was voluntary.
2. The reasoning and judgment of the Court
In his application to the ECHR filed on 13 April 2018, M.A. claimed that – by deporting him to Sudan without an appropriate assessment of the risks of ill-treatment he would face upon return and following his identification by a Sudanese governmental delegation – Belgium had violated its obligations under Article 3 of the European Convention on Human Rights. He also claimed that he was deprived of an effective remedy in violation of Article 13. Finally, he argued that Belgium had breached his rights guaranteed under Article 6§1 and that his detention was incompatible with Article 5.
This contribution is limited to discussing the reasoning of the Court in relation to the alleged breaches of Article 3. In that respect, a review of the Court’s reasoning from the standpoint of the risk assessment obligation is first provided (i). The approach taken by the Court to the question linked to the identification mission is then briefly exposed (ii).
i. On the assessment of the risks of suffering treatments contrary to Article 3 ECHR in the event of return to the country of origin
The Court first examined whether the Belgian authorities respected the procedural obligations under Article 3 and whether they appropriately assessed the risks of ill-treatment that the applicant would face in case of expulsion. Importantly enough, it stressed that the fact that M.A. had withdrawn his asylum application did not, in any case, relieve Belgium from carrying out the assessment stemming from that obligation (para 86).
In light of the general principles established in its previous case-law on deportation, the Court reaffirmed that the applicant has the responsibility to bring forward evidence that they would face a real risk under Article 3 in the event of their deportation, and that the government is responsible for dispelling any doubts as to these allegations (Saadi v Italy, para 129; J.K. and others v Sweden, para 91). However, the Court underlined that the burden of proof of all the relevant facts actually lies on both the applicant and the immigration authorities (J. K. and others v Sweden, paras 91-96). Accordingly, the Court reiterated that, while applicants are responsible for substantiating allegations of individual risks (para 81), their particular vulnerability and the absolute nature of Article 3 entail that national authorities must carry out an assessment of that risk on their own initiative when facts relating to a specific individual that could expose them to ill-treatment are brought to their attention (F.G. v Sweden, para 127). Finally, it reinstated that the responsibility of collecting information on the general situation in a country lies with the immigration authorities (paras 77 to 82).
In applying these principles to the facts of the case, the Court first considered whether M.A. sufficiently substantiated his allegations that he was individually at risk of facing ill-treatment if he returned to Sudan. In that regard, the Court examined whether he was given a sufficient opportunity to demonstrate that risk (paras 88 and 92; case of Ilias and Ahmed v Hungary, para 148). It observed that the applicant had expressed his fears on several occasions (paras 85 and 92). Further, it stressed that the rules concerning the burden of proof should not render the applicant’s rights under Article 3 ineffective, and that practical obstacles that the applicant may have met in acceding to the asylum procedure should be taken into account (para 95; J. K. v Sweden, para 97). Thus, the Court rejected Belgium’s argument that the applicant had failed to provide sufficient information as to his personal situation. It pointed out that M.A. was deprived of the procedural safeguards necessary to seek international protection in Belgium and to explain his personal situation or the risks that he would face in case of deportation to Sudan: inter alia, he only received information about his detention but not about the asylum procedure and about the remedies against expulsion (para 97); he was assisted by a lawyer at a very late stage; he was only asked general questions about the risks he was facing, with no reference to his region of origin, his ethnic origin or the reasons why he left Sudan (para 102). The Court concluded that procedural framework’s shortcomings, combined with the context of mistrust that was caused by the allegations that Belgium was cooperating with Sudanese authorities (paras 100 and 103), amounted to serious obstacles that prevented the applicant from substantiating his individual risk (para 96).
Second, regarding the general situation in the country concerned – which must be established proprio motu by the national immigration authorities (para 82) – the Court considered that Sudan’s poor human rights record was widely known, particularly concerning the region of South Kordofan where M.A. claimed he originated from. Consequently, the Belgian authorities could not have ruled out the existence of a real risk of ill-treatment for the applicant (para 89). The Court added that the fact that the domestic asylum authorities (Commissariat Général aux Réfugiés et aux Apatrides) established post-factum that M.A. was not at risk of ill-treatment did not, in any case, retrospectively absolve Belgium from carrying out a thorough examination of that risk beforehand (para 91; Ilias and Ahmed v Hungary, para 137).
In light of these considerations, the Court concluded that the manner in which the Belgian immigration authorities conducted the assessment of the risk of ill-treatment faced by the applicant did not satisfy the procedural obligations required by Article 3 ECHR. Indeed, the procedural shortcomings prevented M.A. from substantiating his fears of ill-treatment, and the general situation in Sudan was disregarded (para 104).
ii. On whether the meeting between the applicant and the identification mission exacerbated the risk of being subject to ill-treatment upon return to Sudan
The Court briefly brushed over the thorny question of the identification mission in six paragraphs (paras 106-112). It asserted that the organisation of an identification mission with representatives of the country of origin with the aim of issuing travel documents to their nationals is not contrary to the Convention per se (para 107). However, the Court found that the identification of M.A. was not conducted in accordance with the procedural guarantees under Article 3. Indeed, the risk of ill-treatment to which M.A. was exposed was not priorly assessed, the applicant had not been informed of the interview beforehand and he was left without the assistance of a lawyer or of a Belgian immigration officer (para 110).
The M.A. v Belgium judgment should be welcomed in that it grants significant importance to the vulnerability of irregular migrants and asylum seekers (particularly if held in detention), and it endorses the strengthening of procedural duties that national authorities shall carry out (1). However, this contribution also contends that the Court missed the opportunity to take a more radical approach towards identification missions from the migrants’ country of origin (2).
1. On the bright side: an ever-greater responsibility to investigate for State authorities
The decision of the Court in M.A. v Belgium fits into a general trend of the European courts to gradually give more significance to the vulnerability of migrants and asylum seekers, and to apply the rules on the burden of proof with more flexibility. The ECtHR’s starting point remains unchanged: applicants are primarily responsible for presenting evidence that there are substantial grounds to believe that they would suffer treatments contrary to Article 3 in case of deportation (Saadi v Italy, para 129; F. G. v Sweden, para 120 ; J.K. and others v Sweden, para 91). However, it also has a tendency to strengthen the duties of risk assessment relying on State authorities in light of their positive obligations under Article 3 EHCR.
It is interesting to observe, through the recent case-law of the ECtHR and of the Court of Justice of the EU, how a greater responsibility to investigate risks under Article 3 has shifted onto immigration bodies. One of the landmark cases of the ECtHR in that matter is the 2012 decision in Singh and others v Belgium. The Court had condemned Belgium for failing to conduct a thorough examination of the claims under Article 3 that were put forward by the applicants (paras 88 and 103). While Belgium had limited its assessment to considering that some documents produced by the applicants lacked credibility and consequently dismissed them, the Court ruled that the State should have actively taken measures to verify the authenticity of the certificates. Following a similar reasoning in the case of M.M. v Ireland, the CJEU reached the conclusion that it is the responsibility of the national authorities to actively examine whether the evidence provided by the asylum seekers actually meets the conditions required to grant international protection (paras 69-70).
The ECtHR seems to go even further in M.A. v Belgium. On the one hand, the Court confirms its interpretation in the case in F.G. v Sweden, whereby it asserted that as soon as immigration authorities are informed of individual facts that could expose the applicant to a risk of ill-treatment, they must evaluate that risk proprio motu (para 81).
On the other hand, the Court continues to sharpen the risk assessment responsibility and to place increasingly specific obligations on immigration authorities. Thus, the Court considered that asylum seekers must be given full and detailed information, in their own language, about the asylum procedures and the available judicial remedies (para 97); that national authorities cannot limit their questions about the general situation in the country but must inquire about the region of origin, the ethnic origin and the specific reasons for leaving the country (para 102).
These decisions, and particularly M.A. v Belgium, reveal a significant strengthening of the burden of proof lying on State authorities, even with regard to individual situations. They recognise that domestic authorities are in a better position to investigate allegations of risk of ill-treatment than an individual who was forced to flee and who landed, often in a situation of deprivation, in a foreign country. Accordingly, Courts shift the responsibility of the proof onto national immigration bodies to collect and process the information available about the general situation in the country at hand, as well as to adequately verify the elements put forward in support of individual allegations (see Nansen note, at 7 and UNCHR’s note on burden of proof in refugee claims, at para. 6).
2. On the dark side: an unwelcome indulgence towards dictatorship’s missions of identification
Inviting a foreign governmental delegation in order to identify and eventually expel irregular migrants is a widespread practice. When the scandal about the Sudanese delegation hit Belgium, media reported that France, Germany and the Netherlands had also worked with Sudan towards the same objective. Such practices have sparked vivid criticism, and rightly so, for they reveal large-scale strategies of cooperation with repressive governments, at the expense of migrants’ human rights. By way of example, it was recently made public that Switzerland had concluded a secret agreement with China in 2015, whereby Chinese experts are tasked with identifying irregular Chinese nationals on the Swiss territory.
Regarding the case of Sudan, it is widely known that the government, and especially the NISS, have been responsible for serious and widespread human rights violations. Sudan’s leader at the time, Omar Al-Bashir, was (and still is) under an ICC arrest warrant for crimes against humanity in Darfur. The dangers that cooperation with Sudanese authorities entail have been abundantly pointed at (see, inter alia, here and here). With these elements in mind, it is therefore rather surprising that the Court took such a lenient approach to the issue of a national delegation of a country renowned as a dictatorship that was allowed to interact, unsupervised and undisturbed, with the same people who fled that dictatorship.
Indeed, it was – to our knowledge – the first time that the question of identification missions was brought before the Court ruling on the merits. Yet, it does not provide an in-depth reflection as to their fundamental compatibility with human rights. The starting point of the Court’s reasoning is that “missions of identification with representatives of the origin country’s authorities with a view of issuing travel documents to its own nationals is not problematic per se” (para 107, own translation). This sets the tone: it is only under specific circumstances that an identification mission would conflict with the guarantees of Article 3 ECHR. The fact that the delegation originated from a dictatorship world-widely famous for repressing its citizens and, most importantly, migrants’ human rights seems insufficient, for the Court, to consider the practice as raising human rights problems per se.
The Court does not address the issue up front but rather focuses on the procedural context in which the meeting between M.A. and the Sudanese delegation took place, which led it to conclude that the procedural guarantees of Article 3 had not been respected. The Court does not take the reflection any further. Rather than being addressed as a separate issue, the identification mission is merely regarded as one obstacle that should be taken into account when discussing the balance of the burden of proof, and is more broadly integrated in the general assessment of whether the procedural guarantees of Article 3 have been respected towards M.A. In the end, paras 106 to 112 do not add much to what has already been examined by the Court.
This contribution contends that the Court missed the opportunity to assess the compatibility of this new and intrusive manifestation of migration management strategy with general principles applicable to migrants’ human rights. On the one hand, it argues that an identification mission coming from a State with a poor human rights record can constitute a novel form of violation of the principle of non-refoulement (i). On the other hand, it reflects on the interplay between such a practice and the obligations of due diligence stemming from Article 3 of the Convention (ii).
i. Missions of identification as a potential novel form of violation of the principle of non-refoulement
The principle of non-refoulement, enshrined in Article 33 of the 1951 Geneva Convention on Refugees and in the longstanding case law of the ECHR’s since Soering v the United Kingdom in relation to Article 3 ECHR in general, entails that one cannot be removed, directly or indirectly, to their country of origin without an appropriate evaluation of the risks they face from the standpoint of Article 3 ECHR. In light of the arguments developed by the tribunal of first instance of Liège (§23 infra) and by Amnesty International (§24 infra), this contribution argues that the same rule should apply to meetings between a migrant and a delegation from their origin country. By implication, not conducting a thorough assessment of the risks under Article 3 before a confrontation could constitute a violation of the principle of non-refoulement.
A case similar to the one of M.A. came before the tribunal of first instance of Liège in October 2017. First on unilateral application and then on appeal against the first decision, the jurisdiction explicitly prohibited national authorities from “identifying the Sudanese [detained in Vottem] with the assistance of a Sudanese mission of identification” [own translation]. On appeal, the tribunal decided that “[i]dentification by a delegation coming from a country suspected of breaching Article 3 can only take place after a serious and thorough assessment of the individual situation of the person to be identified, allowing to consider that the risk is not real in the particular case of that person and that the identification will not allow to subsequently subject that person to inhuman and degrading treatment, torture or worse” [own translation]. The reasoning of the tribunal of Liège is very interesting and is aligned with the absolute nature of Article 3. The domestic court considered that the same guarantees should apply to a mission of identification intervening prior to a repatriation as well as when a State is considering to send an asylum seeker back to a country where they are likely to face ill-treatment.
In their 2018 report on Belgium, Amnesty International adopted the same position. They pointed out that meetings between migrants and representatives of the regime that they were escaping can be very dangerous. Accordingly, the NGO recommended that an assessment of the risks incurred from the standpoint of Article 3 be conducted before any confrontation with the mission of identification.
Liège’s decisions and Amnesty International’s report recognise that inviting a delegation from the country of origin can create a situation similar to sending a migrant back to their country. In both scenarios, they are confronted to the authorities they sought to flee. In the latter situation, States Parties to the Convention have a clear-cut obligation to thoroughly assess the risks under Article 3 before expelling irregular migrants. In line with the reasoning exposed above, it would follow that States Parties’ immigration bodies also have the obligation to assess whether a meeting with a mission of identification would create or exacerbate the risk of being subjected to a treatment contrary to Article 3 of the Convention.
Arguably, the following conclusion could be drawn: just as a State Party can be found to be in breach of Article 3 for deporting a migrant to a country in which they are likely to face ill-treatment (as was decided by the ECHR in Soering v UK and M.S.S. v Belgium and Greece, and followed by the CJEU in N.S.), similarly, bringing in an identification mission when the person to be identified is at serious risk of facing inhuman and degrading treatment upon return could lead to a violation of Article 3. In that view, the obligation of assessment would intervene at an earlier stage than that of the decision on deportation. In addition, the appreciation would concern two distinct questions: on the one hand, the existence of a risk upon return and whether a confrontation creates or exacerbates that risk; on the other hand, the risks of ill-treatment that migrants would face during the confrontation itself.
The Court reached the conclusion, in casu, that the conduct of the mission did not respect the procedural guarantees required by Article 3 and eventually holds Belgium accountable on that count. However, it is regrettable that the Court did not condemn repressive governments’ missions of identification, or at least set clear safeguards for their implementation. Arguably, such a soft decision risks depriving the protections guaranteed under international human rights and refugee law of their effet utile. What is the point of fleeing a country where one risks persecution, if only to be then surrendered to their national authorities in the foreign State where they sought refuge?
ii. Missions of identification as a practice irreconcilable with human rights due diligence obligation
This contribution is also of the view that the Court missed the opportunity to assess the practice of identification missions in light of obligations of due diligence lying on States when there are no fully-fledged readmission agreements in place. Applied to the context of human rights, obligations of due diligence entail that States take “all reasonable steps to prevent or avoid a risk of human rights violations occurring”.
As has been hinted above, the EU and its Member States have been developing increasingly restrictive migration policies, to a large extent through extraterritorial support (what Carla Ferstman calls “policies of non-entrée”). Applied to the context of migration, due diligence obligations entail that the EU and its Member States conduct prior assessments of whether or not cooperation with third States risk resulting in human rights violations.
Obligations of due diligence in the context of migration have been, to a certain extent, formalised at the EU level. Thus, the EU Fundamental Rights Agency recommends that “when operational cooperation with a third country is envisaged which may involve the interception of migrants and/or their disembarkation in a third country, EU Member States should conduct a careful assessment of the human rights situation in that country”. This recommendation can be transposed, mutatis mutandis, to cases where an EU State invites a third State delegation which may result in the deportation of migrants. However, it appears from the factual evidence of the case of M.A. that the cooperation between Belgium and Sudan was left to informal and non-transparent arrangements (see Amnesty International’s declaration of 30 January 2018), and that the human rights situation in Sudan was not taken into account. On the contrary, it was wilfully ignored.
Within the framework of the ECHR, due diligence obligations fall into the concept of positive obligations. It is of constant case-law that Article 3 of the Convention implies such obligations, which require that States “take certain steps to protect persons within their jurisdiction from grave harm or suffering” (Valiuliené v Lithuania, para 75). The Court had all the tools at its disposal to appreciate that particular practice of third States cooperation in light of the positive obligations stemming from Article 3 in the context of migration. Yet it remained blatantly silent about it. Had it seized the occasion, it would have reached the conclusion that bringing in an identification mission composed of representatives of a country like Sudan is irreconcilable with the obligations of due diligence lying on States Parties. Indeed, this duty means that States must avoid risks of human rights violations when they knew or ought to have known that there were insufficient guarantees protecting the migrant. Therefore, Belgium’s attitude towards Sudanese migrants in 2017 is poles apart of what was reasonably expectable from the State and should have been sanctioned as such by the Court.
3. Conclusion: an ambivalent decision
Although the decision of the Court in M.A. v Belgium should be welcomed as a positive because it condemns Belgium for its practices of cooperation with Sudan in 2017, it must also be greeted with caution. Indeed, this analysis of the reasoning of the Court has shown that it does not formally condemn recourse to identification missions from origin countries with poor human rights records. This contribution has argued that such a cautious decision risks having a detrimental impact on the human rights of migrants and depriving the regime of international protection of its effet utile.
The case of M.A. v Belgium, and in particular the issue of identification missions, raises an array of other questions that could not be addressed here, but that are of relevance to a broader reflection on increasingly restrictive European migration policies. In particular, issues concerning data protection and the right to private life: M.A.’s personal data was shared with Sudanese authorities without his consent and before any assessment of his protection needs was conducted. Another striking problem is the increasing secrecy in which this kind of practices take place, on the margin of legal frameworks. Except with regard to foreigners detained for committing a crime or a felony (15 December 1980 Act, Article 74/8), we were unable to find in the Belgian legal framework any rules organising cooperation with authorities of the origin country for the purpose of identification.
“Demander l’asile, c’est demander à être protégé contre des persécutions et à ne pas devoir retourner dans un pays où on se sait en danger”. It is also seeking protection against being tracked down by the perpetrators of the persecutions on the very territory where one expected to find a safe shelter.
C. Suggested Reading
To read the case: ECtHR, 27 October 2020, M.A. v Belgium, Application No. 19656/18.
ECtHR, 7 July 1989, Soering v The United Kingdom, Application No. 14038/88.
ECtHR, 28 February 2008, Saadi v Italy, Application No. 37201/06.
ECtHR, 2 October 2012, Singh and others v Belgium, Application No. 33210/11.
ECtHR, 26 March 2013, Valiuliené v Lithuania, Application No. 33234/07.
ECtHR, 23 March 2016, F.G. v Sweden, Application No. 43611/11.
ECtHR, 23 August 2016, J.K. and others v Sweden, Application No. 59166/12.
ECtHR, 21 November 2019, Ilias and Ahmed v Hungary, Application No. 47287/15.
M. Crowther et M. Plaut, “Sudan and the EU: Uneasy Bedfellows”, in Van Reisen M, Mawere M, Stockmans M & Gebre-Egziabher, K.A. (eds), Mobile Africa: Human Trafficking and the Digital Divide, Bamenda, Cameroon: Langaa Research & Publishing CIG, 593-629.
C. Ferstman, “Human Rights Due Diligence Policies Applied to Extraterritorial Cooperation to Prevent “Irregular” Migration: European Union and United Kingdom Support to Libya”, German Law Journal, April 2020.
E. Frasca, “M.A. v. Belgium: the (in)voluntary return of a Sudanese migrant and the dangers of informal migration cooperation with third countries”, Strasbourg Observers, 3 December 2020.
L. Leboeuf, “Cour eur. D. H., 2 octobre 2012, Singh et autres c. Belgique, req. N° 33210/11. Le manque du demandeur d’asile à son devoir de coopération ne dispense pas d’un examen complet des girefs défendables tirés de l’article 3 CEDH”, Centre Charles De Visscher pour le droit international et européen, 23 June 2017.
N. Mavronicola, “Positive Obligations in Crisis”, Strasbourg Observers, 7 April 2020.
Nansen, the Belgian refugee council, « Evaluation de la preuve en matière d’asile : l’actualité depuis l’arrêt Singh et autres c. Belgique », Nansen Note 2018/3.
S. Nicolosi, “F.G. v Sweden: fine-tuning the risk assessment in asylum claims”, Strasbourg Observers, 4 April 2016.
Rapport final de la Commission chargée de l’évaluation de la politique du retour volontaire et de l’éloignement forcé des étrangers, présidée par le professeur émérite Marc Bosuyt, présenté à la Ministre de l’Asile et de la Migration le 15 septembre 2020.
S. Saroléa et J.-Y Carlier, « Le droit d’asile dans l’Union européenne contrôlé par la Cour européenne des droits de l’homme. A propos de l’arrêt M.S.S. c. Belgique et Grèce », J.T., 2011, at 353-358.
To cite this contribution: M. de Nanteuil, “The two faces of the moon of a decision condemning the 2017 cooperation between Belgium and Sudan”, Cahiers de l’EDEM, December 2020.
Photo de Nicoleon — Travail personnel, CC BY-SA 4.0