France – Council of State, 24 November 2017, nº 403139
| Country of Decision: | France |
| Court name: | Council of State |
| Date of decision: | 24-11-2017 |
| Citation: | nº 403139 |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Legal assistance / Legal representation / Legal aid
Description
Legal assistance: "practical help in bringing about desired outcomes within a legal framework. Assistance can take many forms, ranging from the preparation of paperwork, through to the conduct of negotiation and representation in courts and tribunals.” Legal aid: state funded assistance, for those on low incomes, to cover legal fees." |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
Headnote:
The National Court for the Right of Asylum (CNDA) has a responsibility to follow the general rules on closing files. Where this is not done, the Court can be found negligent.
Facts:
The French immigration authority (Ofpra) rejected the applicant’s demand for asylum on 15th December 2015. Subsequently Ms. A requested that the French National Court for the Right of Asylum (CNDA) quash this decision; this was rejected on 18 May 2016.
The applicant requests that the Council of State quash the CNDA’s decision rejecting her application to quash the decision of Ofpra and that a charge of €3,000 be paid to her lawyers by Ofpra in accordance with articles L. 761-1 of the French Code of Administrative Justice and 37 of French Law nº 91-647 of 10 July 1991.
Decision & reasoning:
The French Council of State first considered the obligation of the CNDA, as in any administrative court, to follow the general rules on written closing files, namely the requirement to examine notes of court and certify them.
In Ms A’s case, it was found that a note of court, to which a medical certificate was attached, was received at the Court Registry on 6 May 2016, after the public hearing of 27 April 2016. During the judgement of 18 May 2016, no mention was made of this note of court and therefore the Court found the CNDA’s decision to be flawed, giving Ms A. valid ground for appeal to the Council of State.
Regarding the applicant’s rights to legal representation, the Court found that, based on the provisions found in article L 761-1 of the Code of Administrative Justice and article 37 of the French law of 10 July 1991, SCP Monod-Colin-Stoclet could, as her legal representative, claim the sum of 3,000 from Ofpra.
Outcome:
The decision of 18 May 2016 was quashed and the applicant’s case was referred back to the CDNA.
A sum of 3,000 euros was charged to Ofpra to be paid to the applicant’s legal representatives.
Observations/comments:
This case summary was written by Sarah Thurmer, student at BPP University.