Effective Remedies as Capabilities: Toward a User Perspective to Human Rights of Migrants in Belgium

Abstract

Questions concerning effective remedies in refugee status procedures have recently received a lot of attention in Belgium, most notably in two significant high level cases. The Belgian Constitutional Court found in January 2014 that the fast track procedure of annulment for asylum seekers from safe countries of origin did not provide for an effective remedy. Only one month later the European Court of Human Rights reached a similar conclusion in the S. J. v. Belgium case which concerned the effectiveness of remedies available for migrants appealing to a denial of permission to stay on medical grounds. After describing the context and legal significance in some detail, this article offers a complementary 'user perspective', adopting the notion of capabilities to approach the subject from the viewpoint of migrants. Effective remedies represent in the Belgian context not only a procedural right but also a substantive opportunity for migrants to obtain basic capabilities such as life, bodily integrity, and physical and mental health. Reconceptualizing effective remedies as capabilities underlines also the moral responsibility of 'supporting users' (such as human rights organizations) and above all the Belgian state.

Keywords: asylum, capability, effective remedies, human rights, immigration, S.J. v. Belgium