Baghouri et al. v Belgium

Brussels Court of Appeal, Baghouri et al. v Kingdom of Belgium, Nr. 2020/******/C, 21 October 2020

The case concerns an appeal against two Orders of the Tribunal of First Instance of 11 December 2019 and 25 February 2020, ordering the Belgian State to provide consular assistance to several children held at the Al-Hol refugee/detention camp in Syria, as well as to provide necessary identity and travel documents enabling them to travel to Belgium.

The appellants seek reform of the contested Order inasmuch as it states that they are not eligible for consular assistance since they cannot invoke Article 9 of the Convention of the Rights of the Child (CRC) in order not to be separated from their children against their will. They claim that the Order is not in the best interests of the children and violates the CRC, the Charter of Fundamental Rights of the EU and Article 22bis of the Constitution. However, the Court of Appeal finds this claim to be unfounded as the parents are not eligible for consular assistance pursuant to Article 83 Consular Code. This is so because they travelled to a region undergoing armed conflict despite a negative travel advice from the Belgian authorities.


Kingdom of Belgium v E.M.

Brussels Court of Appeal, Kingdom of Belgium v E. M., Nr. 2020 KR 3, 5 March 2020

This case concerns a Belgian woman who had travelled to Syria to join her partner and claimed to have given birth to a son there. Held in the camp of Al-Hol, operated by the Kurdish authorities, she sued the Belgian State to repatriate her son and herself from Syria. The Court of Appeal of Brussels ruled that the guidelines issued by the Ministry of Foreign Affairs providing for the repatriation of all Belgian children up to ten years old from Syrian territory created a subjective right prone to judicial review. Further, having regard to Article 22bis(4) of the Belgian Constitution as well as Article 3(1) of the Convention of the Rights of the Child, the government’s discretionary power to exercise the right to consular assistance was limited by the child’s best interests.  Having regard to the fact that the Kurdish authorities controlled the Al-Hol camp and could determine the modalities for repatriation, the Court found that Belgium did not exercise extraterritorial jurisdiction in the sense of the ECHR or the ICCPR. Nor did the human right to enter one’s own country entail a positive obligation on the part of the State to ensure repatriation.

L. DE BRUCKER, “Het recht op consulaire bijstand vanuit nationaal-, Europees- en internationaalrechtelijk perspectief. Naar een subjectief recht op repatriëring voor kinderen van Syriëstrijders?”, Tijdschrift voor Jeugd- en Kinderrechten 2020, 194-210.

Baghouri et al. v Belgium

Brussels First Instance Tribunal, Baghouri et al. v Kingdom of Belgium, Nr. 2020/******/C, 25 February 2020

The case concerns an appeal by the Belgian government against an Order of the Tribunal of First Instance of 11 December 2019, ordering the Belgian State to provide consular assistance to several children held at the Al-Hol refugee/detention camp in Syria, as well as to provide necessary identity and travel documents enabling them to travel to Belgium.

The Court recognizes the temporary impossibility for the Belgian State to fully execute the Order within the allotted time. This finding is based on the fact that the Belgian State repeatedly requested the Kurdish authorities for the Belgian State to be allowed to provide consular assistance to the children and to organize their repatriation without their parents. The Kurdish authorities refused this request several times because they could not allow the separation of the children from their parents under Kurdish law. In addition, the security threat was such as to jeopardize the security of the consular mission and the children during their repatriation. For this reason, the Court grants the Belgian State an extension of time to implement the decision.


Baghouri et al. v Belgium

Brussels First Instance Tribunal, Baghouri et al. v Kingdom of Belgium, Nr. 2019/*/C, 11 December 2019

Several parents with Belgian citizenship staying at the Al-Hol refugee/detention camp in Syria claim that the Belgian State should be held liable to undertake all feasible measures to ensure the repatriation of their minor children and themselves.

The Tribunal of First Instance confirms that, since the entry into force of the Law of 9 May 2018, consular assistance is no longer a mere privilege, but a subjective right on the part of individuals covered by the Belgian Consular Code. This right, however, is not deemed to be absolute. Article 83 of the Consular Code indeed imposes several grounds for exclusion, including with respect to individuals who knowingly travel to a region where an armed conflict is ongoing. This manifestly applies to the plaintiffs, but not to their minor children, who should not bear the consequences of their parents’ acts, and who remain fully entitled to consular assistance.

In addition, the Tribunal rules that, given the severe neglect of their children by taking them into life-threatening war zone, the plaintiffs cannot invoke the children’s interest in not being separated from their parents against their will under Article 9 of the Convention of the Rights (CRC) of the Child in order to claim any right to assistance for themselves. The Tribunal confirms that neither the plaintiffs, nor their children, come within the jurisdiction of the Belgian State in the sense of the European Convention on Human Rights.

Based on the accumulation of international obligations assumed by the Belgian State (e.g. under the CRC and the Convention on Statelessness), and given the specific factual circumstances of the case, the Tribunal finds that the Belgian State is required to provide the children with the necessary administrative, identity and/or travel documents, to enable them to travel under supervision from Syria to Belgium.


G v. Kingdom of Belgium

Brussels First Instance Tribunal, G. v. Kingdom of Belgium, 19 December 2018

This case concerns a mother suing the Belgian state to enable the children she had with an Islamic State fighter during her stay in Syria, to travel to Belgium. The mother, who is detained in Turkey, used to have the Belgian nationality but currently only holds the Algerian nationality. The children were born in Syria but are living in Turkey and are de facto stateless.

According to the Court, the children had a sufficient connection with neither Syria, Turkey, nor Algeria. By contrast, there was a factual connection with Belgium. Furthermore, while it could be argued that, pursuant to the Convention of 1954 Concerning the Status of Stateless Persons, the claim to obtain travel documents should be directed to the Turkish government, this could not be expected to happen in practice.

Furthermore the Court ruled that, even if there was no specific legal ground obliging the Belgian State to provide the requested travel documents, the State nonetheless had an enforceable legal obligation to act, in light a range of commitments made, such as the general principle of aid and assistance to one’s own nationals, articles 50 and 75 of the Belgian Consular Code, the Convention of 1954 Relating the Status of Stateless Persons, the Convention on the Right of the Child, and article 8 of the ECHR. The Court accordingly ruled the claim to be well-founded and granted the requested provisional measures.