CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 7 juillet 2015

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AND OTHERS v. BELGIUM   (Application no. 60125/11)               JUDGMENT       STRASBOURG   7 July 2015   THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 17/11/2016   This judgment may be subject to editorial revision. In the case of V.M. and Others v. Belgium, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Işıl Karakaş, President,   András Sajó,   Nebojša Vučinić,   Helen Keller,   Paul Lemmens,   Egidijus Kūris,   Jon Fridrik Kjølbro, judges, and Abel Campos, Deputy Section Registrar, Having deliberated in private on 9 June 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 60125/11) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Serbian nationals, Mr V.M. and Mrs G.S.M. and their five children, S.M., E.M., S.M., E.M. and E.M.M., the last of whom died on 18 December 2011 (“the applicants”), on 27 September 2011. The President of the Section acceded to the applicants’ request not to have their names disclosed (Rule 47 § 4 of the Rules of Court). 2.     The applicants were represented by Ms E. Neraudau, a lawyer practising in Nantes. The Belgian Government (“the Government”) were represented by their Agent, Mr M. Tysebaert, Senior Adviser, Federal Justice Department. 3.     The applicants alleged in particular that, on account of the reception conditions in Belgium and their “forced” return to Serbia, the Belgian authorities had exposed them to a situation which endangered their lives and physical integrity (Articles 2 and 3 of the Convention). They also complained that they had not had an effective remedy. 4.     The application was communicated to the Government on 4 February 2013. 5.     The applicants and the respondent Government each filed written observations (Rule 54 § 2). Observations were also received from the non ‑ governmental organisation Coordination et initiatives pour réfugiés et étrangers (“Ciré”), which had been given leave to intervene in the procedure (Article 36 § 2 of the Convention and Rule 44 § 2). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicants, Mr V.M. and Mrs G.S.M., and four of their children were born in 1981, 1977, 2001, 2004, 2007 and 2011 respectively and live in Serbia. Their eldest daughter, who was also an applicant, was born in 2001 and subsequently died on 18 December 2011 after the application had been lodged. A.     The applicants’ movements prior to their arrival in Belgium 7.     The applicants are of Roma origin and were born in Serbia, where they spent the greater part of their lives. They explained that they decided to leave their country for Kosovo because of the discrimination and ill ‑ treatment they had suffered on account of their origin in every sphere: access to the employment market, medical care, schooling difficulties and so forth. 8.     The eldest daughter of the first two applicants had been physically and mentally disabled since birth and had suffered from epilepsy. 9.     After failing to obtain a more secure situation for themselves in Kosovo, in March 2010 the applicants travelled to France, where they lodged an application for asylum. Their application was rejected by a final decision on 4 June 2010. 10.     The applicants stated that in the meantime they had returned to Kosovo, and then to Serbia, in May 2010 owing to the precariousness of their situation in France and their inability to provide for their essential needs. 11.     In March 2011, as their situation had not changed, the applicants decided to go to Belgium, where they lodged an asylum application on 1   April 2011. B.     “Dublin” procedure in Belgium 12.     During their interview with the “Dublin” department of the Aliens Office on 4 April 2011 the applicants gave an account of their movements to date and expressed their fears in the event of a return to Serbia. The first applicant stated that he had chosen to seek asylum in Belgium because he had been told that he could obtain better treatment for his disabled daughter there. He said that he was suffering from psychological problems. The second applicant said that Belgium had been the choice of the smuggler. When asked about her health, she replied that she was six months’ pregnant. She also mentioned their eldest daughter’s health problems. 13.     The applicants maintained that they had explained the reasons why they refused to return to France, where they had been living in extremely precarious conditions. They submitted that they had not been asked to provide any evidence of having left the territory of the Member States of the European Union (“EU”) or regarding the family members’ state of health. 14.     On 12 April 2011 the Belgian authorities sent France requests to take the applicants back on the grounds that the latter had been unable to prove that they had left the territory of the Member States of the EU for Serbia since their stay in France. 15.     On 22 April 2011, relying on Article 16(3) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third ‑ country national (“the Dublin II Regulation”), France refused to take charge of the applicants on the grounds that the couple were considered to have disappeared since May 2010 because they had not collected the notice of final refusal of their asylum application dated 4 June 2010 and this corroborated their statements to the Aliens Office according to which they had left the Schengen Area in 2010 and re-entered it in March 2011, thus leaving for a period of more than three months. 16.     On 2 May 2011 the Belgian authorities asked the French authorities to reconsider their position given that there was no conclusive evidence that the family had left the territory of the Member States for more than three months since their stay in France and the applicants were clearly aware of the rejection of their asylum application in France. 17.     On 6 May 2011 France accepted the request to take the family back pursuant to Article 16(1)(e) of the Dublin II Regulation. 18.     On 17 May 2011 the Aliens Office issued decisions refusing the applicants leave to remain and ordering them to leave the country for France on the grounds that under Article 16(1)(e) of the Dublin II Regulation Belgium was not responsible for examining the asylum application and that France had agreed to take charge of the family. The decisions indicated among other things that the family, who were originally from Kosovo, “had not furnished evidence of their stay” in Kosovo after staying in France nor any certificates regarding any medical treatment or care in respect of the pregnancy, or concerning the child or the father. Considering that France was a country which respected human rights, had democratic institutions, had ratified the Convention and the Geneva Convention on the Status of Refugees, and was bound to implement the directives of the European Union on asylum and that if a return were to raise a problem under Article 3 of the Convention, the family could always lodge an application with the Court for interim measures, the Aliens Office considered that the Belgian authorities did not have to use the sovereignty clause provided for in Article   3(2) of the Dublin II Regulation. 19.     Accordingly, the applicants were ordered to leave the country within seven days and to report to the French authorities at the border crossing. On the same day the applicants were issued with laissez-passer. 20.     On 19 May 2011 the applicants, through their legal representative, contacted the Aliens Office for the purposes of providing it with evidence that they had left the territory of the European Union for more than three months (gynaecologist’s certificates, the second applicant’s health card and proof of enrolment at school of one of their children). 21.     On 25 May 2011 execution of the orders to leave the country were extended until 25   September 2011 on account of the fact that the second applicant was soon due to give birth. 22.     On 16 June 2011 the applicants lodged an application with the Aliens Appeals Board for the decisions refusing them residence permits and ordering them to leave the country to be set aside and for a stay of execution. They argued that the decisions, with the reasons given therein, had not provided them with the examination required by Article 13 taken together with Article   3 of the Convention ( M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 336, ECHR 2011) of their fears regarding a return to Serbia and of their health problems. Firstly, the reasoning was erroneous and incomplete (error as to their nationality, identifying them as Kosovars instead of Serbs, failure to mention their return to Serbia and their Roma origin). Secondly, they could not be blamed for having failed to provide, during their Dublin interview, documents certifying their health problems and their movements to date or for not having substantiated their fears regarding a transfer to France. Like all Dublin asylum-seekers at that time, when they had attended those interviews they had not been assisted by a lawyer or informed of the documents that they should bring and no document had been requested of them. As they had expressed their fears, the Belgian authorities should have asked the appropriate questions and requested the relevant documents in order to ensure that their return did not infringe their fundamental rights. The applicants also argued that France should not have been determined as the State responsible for examining their asylum applications. Under Article 16(3) of the Dublin II Regulation, the obligations regarding the determination of the State responsible ceased where the third-country national had left the territory of the Member States for at least three months. That was precisely the position the applicants had been in on account of their return to Serbia from May 2010 to March 2011 as certified by the documents subsequently sent to the Aliens Office (see paragraph 20 above). Lastly, they submitted that the Belgian authorities should have used the sovereignty clause or the humanitarian clause both on account of their special vulnerability and of the notoriously difficult situation of the Roma minority in Serbia and of the conditions for the reception of asylum-seekers in France. 23.     The hearing before the Aliens Appeals Board took place on 26   August 2011. 24.     On 23 September 2011 the applicants unsuccessfully sought a further extension of the order to leave the country pending the outcome of the proceedings before the Aliens Appeals Board. 25.     On 27 September 2011 the applicants lodged an application with the Court for interim measures suspending their transfer to France pending the outcome of the proceedings before the Aliens Appeals Board. 26.     On 28 September 2011 the Court refused to indicate an interim measure. 27.     In a judgment of 29 November 2011 the Aliens Appeals Board ruled on the application to have the decisions refusing residence permits and ordering the applicants to leave the country set aside and for a stay of execution. 28.     The Aliens Appeals Board dismissed the ground of appeal regarding the conditions of reception in France and based on the risk alleged by the applicants of being exposed to treatment contrary to Article 3 of the Convention. It found as follows: “... the Board cannot but observe that the applicants have failed to show that they encountered difficulties in their dealings with the French authorities regarding access to health care for their child or their conditions of reception as asylum-seekers. They have not adduced so much as a shred of evidence regarding the circumstances of the ill-treatment they have allegedly suffered and have merely asserted in their application, without substantiating this with the slightest evidence that could corroborate the facts,   “ that they found themselves in an extremely precarious situation at the time of lodging their application for asylum and that their only refuge was a night hostel that they had to leave the next morning” . Moreover, although their daughter’s disability had been specified in the “Dublin form”, the parties have not made any allegation whatsoever before the Aliens Appeals Board of encountering particular difficulties in the reception of asylum-seekers as organised by the relevant French authorities.” 29.     The Aliens Appeals Board also criticised the applicants for failing to produce in full the NGO reports that they had cited in support of their application, which had prevented it from checking whether the extracts produced did actually concern France. 30.     The Aliens Appeals Board set the decisions aside, however, on the ground that the Aliens Office had not established the legal basis on which it considered that France was the State responsible for examining the applicants’ asylum application. 31.     On 23 December 2011 the Belgian State lodged an appeal on points of law with the Conseil d’État against the Aliens Appeals Board’s judgment. It disputed the Aliens Appeals Board’s analysis of the applicable legal basis. 32.     In an order of 12 January 2012 the Conseil d’État declared the appeal admissible. In a judgment of 28 February 2013 it rejected it for lack of current interest on the grounds that the operative provisions of the Aliens Appeals Board’s judgment were no longer a source of complaint for the applicants because they had returned to Serbia and had left the territory of the Member States for more than three months with the result that Belgium was relieved of any obligation in the process of determining which Member State was responsible for their asylum application. C.     Application for regularisation of residence status on medical grounds 33.     In the meantime, on 22 September 2011, the applicants had lodged an application for leave to remain on medical grounds under section 9ter of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15   December 1980 (“the Aliens Act”) on behalf of their eldest daughter. They referred to the extreme precariousness of their position and the discrimination they had suffered as Roms in Serbia and Kosovo. Citing several international reports in support of their submissions, they argued that for that reason they had no guarantee that they would be able to obtain the necessary treatment for their daughter’s health condition. They sought temporary leave to remain pending the outcome of the asylum proceedings they had instituted in Belgium. 34.     On 30 September 2011 the Aliens Office declared their application inadmissible on the grounds that the medical certificate of 26 June 2011 (see paragraph 38 below), produced in support of their application to have their residence status regularised, certified the existence of a medical problem and stipulated the treatment considered necessary but, contrary to the requirements of section 9 ter § 3, 3 o of the Aliens Act, did not specify the degree of seriousness of the condition. 35.     The applicants indicated in their observations in reply that they had learnt of the existence of that decision during the proceedings before the Court. D.     Reception in Belgium and medical care 36.     On 1 April 2011 the Federal agency for the reception of asylum-seekers (“Fedasil”) assigned the applicants a reception facility as their mandatory place of registration, namely, Morlanwez asylum-seekers’ reception centre. 37.     The social worker from the centre took down the following account by the applicants of the conditions of their reception in France: “The family decided to leave France because they had no means of subsistence. They were living in a night shelter which they had to leave in the day. They and the children were out on the streets from 7 a.m. They had to use a pushchair as a wheelchair for S., who is disabled. They had no information of any kind apart from the status of asylum-seeker which had been given to them on their arrival. No doctor, no social worker, no lawyer, no interpreter. They had absolutely no means of communication. They had no idea what they should do or what to expect. S. was not receiving any medical treatment of any kind. When her health deteriorated and she had to be taken to hospital, it was the mother’s sister who drove her to the emergency ward at the hospital and acted as interpreter. Once at the hospital the little girl had [ epileptic ] fits and her hair fell out. That was what decided the family to return to Serbia”. 38.     The eldest daughter was examined on 26 June 2011 by a neuro ‑ psychiatrist at Jolimont-Lobbes Hospital and a medical certificate was drawn up on that day certifying the child’s disabilities. 39.     In that certificate, which was sent to the Aliens Office on 1 July 2011, the doctor noted that the child had “cerebral palsy with epilepsy”, suffered from “severe axial and peripheral hypotonia”, that she could not sit up unassisted and soiled her underwear, that she could not talk and appeared not to understand others. He also noted that the child was taking medicines and that she required physiotherapy and appropriate equipment (orthopaedic braces, seat-brace). Those medical findings were confirmed by a neurological examination carried out on 1 July 2011. 40.     The eldest daughter was admitted to hospital on 7 and 8 July 2011 for her epileptic fits and a neurological report drawn up. 41.     After the second applicant gave birth on 26 July 2011 the family were assigned a new reception centre on 5 August 2011 in an open centre suitable for families, in Saint-Trond in the province of Limbourg. 42.     On 26 September 2011, when the order extending execution of the order to leave the country expired, and as they could no longer benefit from material assistance for refugees, the applicants were removed from the Saint-Trond reception centre. 43.     The applicants travelled to Brussels, where voluntary associations indicated a public square in the municipality of Schaerbeek, in the centre of the Brussels-Capital administrative district, where other homeless Roma families were also staying. They stayed there from 27   September to 5   October 2011. 44.     On 29 September 2011, through their legal representative, the applicants asked the French-speaking community’s General Delegate to the Rights of the Child to intervene urgently with the national authorities responsible for the reception of asylum-seekers. 45.     On the same day the General Delegate sent a letter to the Director-General of Fedasil requesting that accommodation be found urgently. 46.     A signed statement by the General Delegate dated 2 October 2011 indicated that he also contacted the municipality of Schaerbeek in an attempt to find urgent accommodation for the family. According to the General Delegate, the municipal authorities stated that they did not have power to make a decision and that it was for the federal authorities to decide, and Fedasil declared that it did not have power on account of the decision taken by the Aliens Office regarding France’s responsibility for processing the asylum request (see paragraph 18 above). Fedasil also stated that the application to the Aliens Appeals Board (see paragraph 22 above) was not of suspensive effect, which was why the reception centre had applied the rules terminating the right to material assistance. 47.     On 5 October 2011, following the intervention of the General Delegate, the Secretary of State’s office for Asylum and Migration, Social Integration and the Fight against Poverty instructed Fedasil to designate a reception centre as a matter of urgency. 48.     After spending two days at the transit centre of the Woluwe ‑ Saint ‑ Pierre municipality, also in the Brussels-Capital administrative district, on 7   October 2011 the applicants were assigned a new reception centre as a mandatory place of registration: the Bovigny reception centre for asylum-seekers in the province of Luxembourg approximately 160 km from Brussels. 49.     The Government maintained that the applicants had failed to register at the centre. The applicants, for their part, stated that they had gone there by train and a special bus but had been sent back to Brussels to Fedasil’s Dispatching Department on the grounds that their “annex 26 quater [order to leave the country] was invalid.” 50.     When they got back to Brussels on 7 October 2011 the applicants got off the train at the Brussels Gare du Nord, where they remained without any means of subsistence and with no accommodation despite the very cold weather for nearly three more weeks until their return to Serbia was organised via a charitable organisation as part of the Fedasil return programme. The applicants left Belgium for Serbia on 25 October 2011. 51.     In the meantime, on 12   October 2011, the applicants’ mandatory place of residence had been changed to code 207 “no-show” (see paragraph 81 below) and on 25 November 2011 the applicants’ names were deleted from the waiting register. E.     Return to Serbia 52.     After their return to Serbia their eldest daughter’s health deteriorated, forcing the applicants to leave the room they had rented on account of the insalubrious conditions. They went to stay with a relative in Novi-Sad and then to the suburbs in Belgrade. 53.     The applicants’ eldest daughter was admitted to hospital on 4   December 2011 suffering from a lung infection. She died on 18   December 2011. 54.     In a letter to their lawyer of 21 November 2012 the applicants stated that they had been attacked by Serbs on a number of occasions: among other incidents, some men had driven by in a car and broken the windows of their home by throwing stones, and had uttered threats, complaining of their links with the “Belgians” and ordering them to leave Serbia. The first applicant had attempted to defend himself and been beaten up twice by his attackers. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     “Dublin” procedure for determining the responsible State 1.     Procedure before the Aliens Office 55.     In accordance with the Aliens Act, the Aliens Office is the administrative body which determines the State responsible for examining an asylum application under the Dublin III Regulation (formerly the “Dublin II   Regulation”, see paragraphs 100-02, below). The relevant provisions of the Act governing the procedure for determining the responsible State were the same as those described in M.S.S. v. Belgium and Greece , cited above (§§ 129-35). 56.     Where another State has agreed to take charge or take back, the Aliens Office will serve a decision on the asylum-seeker refusing leave to remain and ordering him or her to leave the country. It issues a document in accordance with the specimen document appearing in the annex 26 quater of the royal decree of 8 October 1980 on the admission, residence and expulsion of aliens. The Aliens Office indicates which country is responsible for examining the asylum application and issues the asylum-seeker with a laissez-passer to enable him or her to enter the country in question. 2.     Appeals to the Aliens Appeals Board 57.     Decisions taken by the Aliens Office may be challenged by appealing to the Aliens Appeals Board, which is an administrative court established by the Act of 15 September 2006 reforming the Conseil d’État and setting up an Aliens Appeals Board. The powers, jurisdiction, composition and functioning of the Aliens Appeals Board are governed by the provisions of the Aliens Act as amended by the aforementioned Act of 15 September 2006. The procedure to be followed before the Aliens Appeals Board is governed by a royal decree of 21 December 2006. 58.   An application to set aside is not an appeal on questions of both fact and law. The review by the Aliens Appeals Board is a review of the lawfulness of the decision being appealed against. 59.     An application to set aside does not suspend enforcement of the measure in question. However, the legislation provides that it may be accompanied by a request for a stay of execution of the measure, either under the extremely urgent procedure, which itself suspends enforcement of the measure, or under the “ordinary” procedure. 60.     At the material time applications for a stay of execution were governed by the provisions of section 39/82 of the Aliens Act, which reads as follows: “1.     Where a decision by an administrative authority is subject to an application to set aside under section 39/2, the Board shall have sole jurisdiction to order a stay of execution. A stay of execution shall be ordered, once evidence has been heard from the parties or they have been duly convened, by means of a reasoned decision of the President of the division hearing the application or the aliens appeals judge whom he or she designates for the purpose. In cases of extreme urgency a stay of execution may be ordered on an interim basis without evidence having been heard from some or any of the parties. Applicants who request a stay of execution must opt for either the extremely urgent procedure or the ordinary procedure. They may not, simultaneously or consecutively, either seek a second time to have the third sub-paragraph applied or re-apply for a stay of execution in the application referred to in paragraph 3. Failure to comply may result in the request being declared inadmissible. By way of derogation from the fourth sub-paragraph and without prejudice to paragraph 3, the rejection of a request for a stay of execution under the extremely urgent procedure shall not prevent the applicant from subsequently requesting a stay of execution under the ordinary procedure, where the application under the extremely urgent procedure was rejected on the grounds that the extreme urgency of the situation was not sufficiently established. 2.     A stay of execution may be ordered only if 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 harm. Judgments ordering a stay of execution may be recorded or amended at the request of the parties. 3.     Except in cases of extreme urgency, the request for a stay of execution and the application to set aside must be submitted in a single document. The title of the application should specify whether an application to set aside is being lodged or a request for a stay of execution and an application to set aside. Failure to comply with this formality will result in the application being treated solely as an application for judicial review. Once the application to set aside has been lodged any subsequent request for a stay of execution shall be inadmissible, without prejudice to the possibility for the applicant to lodge, in the manner referred to above, a fresh application to set aside accompanied by a request for a stay of execution, if the time-limit for appeals has not expired. The application shall include a statement of the grounds and facts which, in the applicant’s view, justify a stay of execution or an order for interim measures, as applicable. Any order for a stay of execution or other interim measures issued prior to the lodging of the application to set aside the decision shall be immediately lifted by the Division President who issued it or by the aliens appeals judge designated by him or her, if the judge observes that no application to set aside setting out the grounds for such measures has been lodged within the time-limit specified by the procedural regulations. 4.     The Division President or the aliens appeals judge designated by him or her shall rule on the request for a stay of execution within thirty days. If a stay of execution is ordered a ruling shall be given on the application to set aside within four months from delivery of the judicial decision. If the alien in question is the subject of an expulsion or removal order which is to be enforced imminently, and has not yet lodged a request for a stay of execution, he or she may request a stay of execution of the decision under the extremely urgent procedure. If he or she lodged a request under the extremely urgent procedure in accordance with the present provision no later than five days, but no earlier than three working days, following notification of the decision, the request shall be examined within forty-eight hours of its receipt by the Board. If the Division President or the aliens appeals judge concerned does not give a decision within that time, the First President or the President shall be informed and shall take the necessary action to ensure that a decision is given within seventy-two hours of the request being received. They may even examine the case and take the decision themselves. If no stay of execution is granted the measure shall again become enforceable. ...” 61.     If the person concerned opted for the “ordinary” procedure, he or she could request interim measures, possibly as a matter of extreme urgency, in accordance with section 39/84 of the Act. 62.     For a request for a stay of execution or for interim measures to be granted as a matter of extreme urgency, the enforcement of the expulsion measure had to be imminent (section 39/82, paragraph 4, second sub ‑ paragraph, and section 39/85, first sub-paragraph, of the Aliens Act). That requirement, inserted by the above-mentioned Act of 15   September 2006, was to be construed in the light of the interpretation of the concept of extreme urgency by the Conseil d’État , in particular in the judgments of the General Assembly of the Administrative Division of 2 March 2005 (nos. 141.510, 141.511 and 141.512): “[The applicant] must demonstrate that the ordinary procedure for a stay of execution would not be effective in preventing the serious damage alleged, bearing in mind the possibility of lodging a request for interim measures as a matter of extreme urgency during the proceedings ..., the two requests being then examined jointly. ... It is common ground that, save in exceptional cases where orders to leave the country are accompanied by coercive measures with a view to repatriation, the opposing party does not systematically review their actual enforcement. Accordingly, a mere reference to an order to leave the country that has been issued is not sufficient to demonstrate the existence of extreme urgency.” 63.     Following this line of case-law, the Aliens Appeals Board took the view that, for the danger to be imminent, the alien in question had to be subject to a coercive measure aimed at securing his or her departure from the country. In the absence of such a measure, it considered that a situation of extreme urgency had not been established (see, among many other authorities, judgments nos. 456 of 27 June 2007 and 7512 of 20   February 2008). 64.   Following the introduction of the present application the Aliens Act was amended by the Procedure before the Aliens Appeals Board and Conseil d’Etat (Miscellaneous Provisions) Act of 10   April   2014. 65.     That Act reformed the procedure for applications for a stay of execution as a matter of extreme urgency in order to take account of the lessons drawn from M.S.S. v. Belgium and Greece , cited above, the subsequent case-law of the Aliens Appeals Board (see, among other authorities, the seven judgments of the General Assembly of 17 February 2011, nos.   56.201 to 56.205, 56.207 and 56.208) and judgment no.   1/2014 of 16 January 2014 of the Constitutional Court. In that judgment, which dealt with an application to set aside the Act of 15 March 2012 amending the Aliens Act, which set up an expedited procedure for asylum-seekers from “safe” third countries, the Constitutional Court ruled among other things on whether applications to set aside and requests for a stay of execution under the extremely urgent procedure satisfied the criteria of effectiveness laid down by the Court’s case-law on Article 13 of the Convention taken in conjunction with Article 3 and set aside the Act in question in part. 66.     The above-cited provisions, as redrafted, provide that an application for a stay of execution under the extremely urgent procedure must be lodged within ten days, or five if the removal order in question is not the first to have been issued against the person concerned. The conditions for extreme urgency to be made out remain identical. Removal must be imminent, which mainly concerns detainees (see paragraphs 62 ‑ 63 above). However, the Act does not preclude the possibility that other circumstances may justify use of the extremely urgent procedure. The reform also provides that there is a presumed risk of serious and irreversible harm if the violation alleged concerns a right from which no derogation is possible, such as Articles 2, 3 or 4 of the Convention. B.     Procedure for seeking leave to remain on medical grounds 67.     Section 9 ter of the Aliens Act provides for the possibility of applying for leave to remain on medical grounds. At the material time the relevant parts of this provision provided: “1.     Aliens resident in Belgium who provide proof of identity in accordance with paragraph 2 and who are suffering from an illness entailing a real risk to their life or well-being or a real risk of inhuman or degrading treatment if no suitable treatment exists in their country of origin or country of residence may apply to the Minister or his or her representative for leave to remain in the Kingdom. The request must be made by registered letter to the Minister or his or her representative and must include the actual address of the individual concerned in Belgium. The alien concerned must submit the request together with all the relevant information concerning his or her illness and the availability and accessibility of suitable treatment in the country of origin or the country of residence. The alien concerned shall submit a standard medical certificate as provided for by royal decree approved by the Cabinet. The medical certificate shall indicate the illness, its degree of seriousness and the treatment considered necessary. ...” 68.     The procedure for examining the application for leave to remain involves two stages. First, the Aliens Office examines the admissibility of the application, particularly the information that must appear on the medical certificate (indication of the illness, its degree of seriousness and the treatment considered necessary). In that connection the Aliens Appeals Board has explained that “the intention [of the legislature] to clarify the procedure would be undermined if the Aliens Office were required to carry out a detailed examination of any medical certificate produced and attached documents, in order to ascertain the nature of the illness, its degree of seriousness or the treatment considered necessary, whilst the [official in question] is neither a medical officer nor other designated doctor” (see, in particular, Aliens Appeals Board, no.   69.508, judgment of 28 October 2011). 69.     The second stage, which concerns only applications that are considered admissible, consists in an examination on the merits of the criteria set out in the Act by the Aliens Office on the basis of an opinion given by a medical officer or other designated doctor. 70.   An application may be lodged with the Aliens Appeals Board to have a decision taken by the Aliens Office on the basis of section 9 ter (see paragraphs 57-58, above) set aside. C.     Reception of asylum-seekers 1.     Public Social Welfare Offices Institutional Act of 8 July 1976 71.     The general principle, established by section 57 § 1 er of the Public Social Welfare Offices Institutional Act of 8 July 1976, is that anyone and any family is entitled to social support in the most appropriate form. This is provided by public social welfare offices established throughout Belgium and administered by the municipalities. 72.     The law provides for a derogation from this general principle with regard to foreign nationals illegally resident in Belgium. Section 57 § 2 1 o of the Institutional Act provides, by way of derogation from section 57 §   1, that the mission of the social welfare offices is limited to granting urgent medical assistance to that category of persons where the social welfare office has established that they are in need. 73.     In the case of families with children illegally resident in Belgium and whose state of need has been established by the social welfare office (section 57 § 2, 2 o ), social support is limited to the material assistance necessary for the child’s development. It is granted exclusively in a reception centre run by Fedasil as provided for in section 60 of the “Reception” Act (see paragraph 86 below). 74.     The Royal Decree of 24 June 2004 setting out the terms and conditions for granting material assistance to foreign minors illegally resident with their parents in the Kingdom provides that in order to obtain this assistance an application must be made by the minor or by the family on his or her behalf to the social welfare office for his or her habitual residence. The social welfare office then carries out enquiries to check that all the statutory conditions are satisfied and makes its decision no later than one month following receipt of the application.     Where the conditions are satisfied and the persons concerned undertake in writing to accept the proposed accommodation, the social welfare office informs the applicants that they can obtain material assistance in a reception centre. The applicants must then report to the Dispatching Department of Fedasil (see paragraph 79 below). 2.     The “Reception” Act of 12 January 2007 75.     The reception of asylum-seekers is governed by the Reception of Asylum-seekers and other Categories of Foreign Nationals Act of 12   January 2007 (“the Reception Act”) which transposes Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seekers in the Member States. a)     Material assistance 76.   Asylum seekers and members of their family who have entered the Kingdom without satisfying the conditions for leave to remain and who lodge an asylum application with the Aliens Office have a right to reception, namely, material assistance enabling them to lead a life in keeping with human dignity (section 1 of the “Reception” Act). 77.     Material assistance includes accommodation; meals; clothing; medical, social and psychological care; a daily allowance; and access to legal aid and services such as interpreting and training (sections 16 to 35 of the “Reception” Act). 78.     In all decisions concerning minors, the child’s interests are paramount (section 37 of the “Reception” Act). b)     Mandatory place of registration 79.     Material assistance is granted by the reception facility or by the social welfare office   designated by Fedasil as the “mandatory place of registration” (sections   9 and 10 of the “Reception” Act). Specifically, foreign nationals who have lodged an asylum application must go to the Dispatching Department of Fedasil located in the same building as the Aliens Office to request material assistance and be assigned a reception facility. 80.     All persons who have lodged an asylum application are recorded in a special register – the waiting register – which also records their place of mandatory registration under the code 207. 81.     Persons assigned a reception facility must reside in the designated facility in order to receive material assistance. If they do not reside there the words “no show” will be filled in under code 207 and the rights of the persons concerned will be limited to urgent medical assistance pursuant to section 57 § 2 of the Public Social Welfare Offices Institutional Act of 8   July 1976 (see paragraph 72 above). 82.     In judgment no.   80/1999 of 30 June 1999 the Administrative Jurisdiction and Procedure Court (now the Constitutional Court) observed that section 57 § 2 could not be construed as applying to foreign nationals who, for medical reasons, were totally unable to comply with an order to leave Belgium and that a contrary interpretation would be discriminatory. c)     Duration of material assistance 83.     An asylum-seeker is eligible for material assistance from the time of lodging his or her asylum application and that eligibility is effective throughout the asylum proceedings. Where the application for asylum is unsuccessful, material assistance will cease when the time-limit for complying with the order to leave the territory served on the asylum-seeker has expired. An appeal on points of law to the Conseil d’État will not trigger a right to material assistance unless the appeal is declared admissible (section 6 of the “Reception” Act). 84.     Àt the time of the events in the present case Fedasil had interpreted this provision to mean that reception facilities to asylum-seekers under the Dublin procedure were in principle suspended on the expiry of the time-limit for complying with an order to leave the country issued in accordance with the specimen form provided in the annex 26 quater , from which time the persons concerned were regarded as illegally resident in Belgium. In line with its previous practice, Fedasil’s instructions of 13   July 2012 relating to the cessation of material assistance were as follows: “An asylum-seeker ... who is served with an annex 26 quater may lodge an application to have the decision set aside and a stay of execution ... with the Aliens Appeals Board but such applications do not have suspensive effect and accordingly do not give him or her further entitlement to material assistance.” 85.     Material assistance may be extended in certain situations listed in section 7 §§ 1 er and 2 of the “Reception” Act, on condition that the asylum proceedings have ended with a rejection of the application and are not the subject of a decision designating a State other than Belgium as responsible for processing the asylum application. Section 7   §   3 in fine provides that in special circumstances relating to respect for human dignity Fedasil may derogate from the conditions stipulated in section 7. 86.     Furthermore, under section 60 of the “Reception” Act, in respect of minors illegally resident with their parents on Belgian territory and whose state of need has been established by a social welfare office (see paragraph 73 above), Fedasil must continue to provide material assistance in the reception facilities run by the agency. d)     Medical care 87.     Beneficiaries of reception facilities are entitled to medical care necessary to lead a life in keeping with human dignity (section 23 of the “Reception” Act). This right extends to asylum-seekers who are not resident in the reception facility assigned to them (section 25 § 4). 3.     Appeals 88.     In accordance with Article 580, 8 o of the Judicature Code, disputes relating to the application of the Public Social Welfare Offices Institutional Act and the “Reception” Act are heard by the relevant employment tribunal. Accordingly, an appeal may be lodged with the employment tribunal against a decision – or even the absence of a decision – by a social welfare office or by Fedasil. 89.     Pursuant to Article 628, 14 o of the Judicature Code, the court of the appellant’s domicile, last place of residence or, failing that,