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

Human Rights & International Legal Discourse, Forthcoming

22 Pages Posted: 27 Aug 2014 Last revised: 9 Feb 2015

See all articles by Sarah Ganty

Sarah Ganty

Université Libre de Bruxelles (ULB); University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Moritz Baumgärtel

Utrecht University - Faculty of Law; Utrecht University - University College Roosevelt

Date Written: August 26, 2014

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

Suggested Citation

Ganty, Sarah and Baumgärtel, Moritz, Effective Remedies as Capabilities: Toward a User Perspective to Human Rights of Migrants in Belgium (August 26, 2014). Human Rights & International Legal Discourse, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2487254

Sarah Ganty

Université Libre de Bruxelles (ULB) ( email )

CP 132 Av FD Roosevelt 50
Brussels
Belgium

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

Moritz Baumgärtel (Contact Author)

Utrecht University - Faculty of Law ( email )

Janskerkhof 3
Utrecht, 3512 BK
Netherlands

Utrecht University - University College Roosevelt ( email )

Lange Noordstraat 1
Middelburg, 4331CB
Netherlands

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