France - Administrative Court of Appeal of Montpellier, 19 March 2020, N° 2020-213
| Country of Decision: | France |
| Court name: | Administrative Court of Appeal of Montpellier |
| Date of decision: | 19-03-2020 |
| Citation: | (France) Administrative Court of Appeal of Montpellier, , N° 2020-213, 19 March 2020 |
Keywords:
| Keywords |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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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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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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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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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Accommodation centre
Description
Any place used for the collective housing of asylum seekers. |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
The Court concluded on the immediate release of an Egyptian national from detention. The judgment referred to the detention conditions for vulnerable persons that suffer from serious health conditions during the Covid-19 pandemic.
Facts:
The applicant is an Egyptian national detained in an administrative detention centre in Perpignan, France. Following the order to leave the French territory, the applicant has been held in an immigration detention facility. The duration of the immigration detention has been extended due to the Covid-19 situation and the impossibility for the applicant to return to his country of origin.
The applicant submitted a request for release that has been declined by the judicial tribunal of Perpignan and appealed to the Administrative Court of Appeal of Montpellier. The applicant declared that his health was in danger due to the detention conditions. He suffered from a serious heart condition and he declared sleeping in a room with three other persons without masks available or social distancing possible.
The applicant appealed against the Court’s refusal to his release request.
Decision & reasoning:
Having found the complaint admissible, the court assessed the legal provisions linked to the applicant’s health condition. It recalled the incompatibility of placing a foreigner detention, when the person is in possession of a medical certificate attesting the incompatibility of his health condition with an administrative detention measure, as defined under Article L-551-1 of CESEDA.
Thirdly, the Court referred to the uncertainty regarding the possibility for the applicant to leave the French territory and the maximum period of the immigration detention, due to Covid-19 travel restrictions.
In addition to the medical certificate, the material and sanitary conditions of the administrative detention centre (under Article R 553-6 CESEDA) were invoked as incompatible with the sanitary measures ordered by the French President. Therefore, the applicant’s health safety was at risk and his immediate release was ordered.
The CA has recalled that he has the obligation to leave the French territory when the necessary conditions, as mentioned in Article L 554-1, will be in place.
Outcome:
Appeal granted.
Observations/comments:
The judicial procedures regarding the conditions of vulnerable persons in situation of detention have to be re-assessed as the current Covid-19 pandemic and political situation require efficient responses. The judicial system has to adapt to the new consequences on individual fundamental rights since the Covid-19 pandemic broke out. The European and domestic legislation on asylum did not foresee the situation of a global pandemic and there exists a serious lack of legal provisions for the judicial and administrative authorities to rely on.