France - Administrative Tribunal of Paris, Urgent Applications Judge, February 13th 2019 Decree, N° 1902037/9
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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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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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
Headnote:
The difficulties in access to the regional telephone operating centers set up by the French Office for Immigration and Integration (OFII) in order to obtain an appointment to register asylum applications leads to legal uncertainty for asylum seekers. This legal uncertainty violates their constitutional right to asylum, and therefore creates an emergency situation on which the Urgent Applications Judge can adjudicate.
Facts:
In May 2018, the French Office for Immigration and Integration (OFII) set up a telephone platform used to book appointments with the first reception asylum authorities (SPADA), where asylum seekers can apply for international protection.
According to a survey carried out by the OFII, only 22% of asylum seekers were able to contact an agent on the first call, while aroung 30% have to call at least six times before getting an answer. This results in a ‘virtual line-up’ leading to a lack of unobstructed access to asylum procedures for applicants. The legal insecurity stemming from this situation meets the condition of urgency necessary for the Urgent Applications Judge to adjudicate.
Decision & reasoning:
As the Tribunal notes, this new procedure has improved access for people who can from now on avoid queuing for registration. However, the Tribunal also observed that a significant amount of people had experienced issues with securing an appointment via the dedicated platform. Many people were moreover unable to obtain acknowledgement of receipt of their attempt. The Tribunal concluded that there was a problem of accessibility to the platform, and therefore to the asylum procedure.
The Tribunal considered that the time spent on these failed attempts had to be calculated in the deadlines mentioned in article 6 of the Asylum Procedures Directive 2013/32/EU regarding the timeframe for the registration of applications (three working days after the application was made). Considering that 9,66% of successful calls follow a waiting period of at least ten days, the telephone procedure is unduly extending the period mentioned by the Directive.
The unduly extended waiting time also contravenes article L 741-1 of the French Code of Entry and Residence of Aliens and the Right to Asylum, which sets up the same timeframe as the Directive for the registration of applications. The Tribunal also noted that, because the calls were not free, it was mandatory to ensure that applicants obtained answers to their request as soon as possible.
The Tribunal instructed the OFII to coordinate the number of agents working on the platform with the number of calls received, in order to improve the procedure. The Tribunal therefore ordered the Office to employ two additional full-time workers on the platform.
Outcome:
Application granted.
Observations/comments:
In a ruling dated November 25th 2019, the Urgent Applications Judge, mentioning the difficulties experienced by applicants in accessing asylum procedures, urged the Paris Police Prefect to increase the number registration appointments available to asylum applicants, and to conduct negociations with the Autorité de Régulation des Communications éléctroniques (Electronic Communications Regulation Authority) in order to make telephone calls to the platform free as soon as possible.
The ruling is available in french at : http://paris.tribunal-administratif.fr/content/download/166767/1674586/version/1/file/1924867.pdf
This summary was written by Sinéad Gough, LLM Student at Queen Mary University of London.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Domestic Case Law cited
Constitutional Council (Conseil Constitutionnel), August 13 1991, N°93-325 DC