France – Constitutional council, 19 October 2018, N° 2018-741 QPC (priority question of constitutionality)
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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Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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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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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
The Constitutional Council decides on the constitutionality of the 48H limit under national law for a third-country national to appeal against an order to be escorted to the border. The Council found that the deadline is in line with the French Constitution, as it guarantees the right to an effective remedy.
Facts:
A priority question of constitutionality has been referred to the Constitutional council regarding the 48H limit applicable to a third-country national wishing to appeal against an order to be escorted to the border.
This limit is provided by the second paragraph of Article L. 512-1 of the CESEDA which is rendered applicable in the context of an appeal against an order to be escorted to the border by being incorporated by reference in Articles L. 533-1 of the aforementioned code and L. 776-1 of the code of administrative justice.
The priority question of constitutionality hence relates to the conformity to the French Constitution of the reference “L. 512-1” found in the last paragraph of Article L. 533-1 mentioned above, as well as to the words “and the order to be escorted to the border decided on the grounds of Article L. 533-1 of the CESEDA” found in Article L. 776-1 mentioned above.
Decision & reasoning:
Applicants and interveners argue that those provisions are unconstitutional as the 48H limit disregards Article 16 of the 1789 Declaration of the Rights of the Man and of the Citizen, which provides for the prohibition to violate the right to an effective remedy.
The Constitutional council first recalls that on the grounds of the second paragraph of Article L. 512-1 mentioned above, the third-country national, against whom a return order has been issued, has a 48H limit to appeal. The administrative judge issues a ruling then within 3 months, a time limit reduced to 72H when the third-country national is detained or under house arrest. It goes on to note the applicability of those time limits to a third-country national against whom an order to be escorted to the border has been issued on the grounds of the contested provisions, as they refer to the second paragraph of Article L. 512-1 mentioned above.
However, the Council observes that Article L. 512-1 of the CESEDA provides for procedural guarantees once the order has been notified to the third-country national, such as the right to notify a counsel, consulate or person of his choice, to be notified of the key elements of decisions, to obtain assistance from an interpreter or counsel.
The Constitutional Council hence concludes that the legislator has reached a balanced reconciliation between the right to an effective remedy and the pursued objective to ensure the execution of orders to be escorted to the border while preventing the extension of measures depriving or restricting one’s liberty.
Outcome:
Declaration of constitutionality
Observations/comments:
Summary of the decision by Hélène Soupios-David, Chargée des questions européennes et des études à France terre d’asile for ELENA legal weekly update, ECRE
Text commentary by the Constitutional council (available in French only)
Documentary record by the services of the Constitutional council (available in French only)