France – Court of Appeal of Toulouse, 18 April 2017, n° 17/00517
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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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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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 Judge of liberty and detention of the Toulouse Appeal Court considered that an extension of the applicant’s administrative detention could mean subjecting her to imminent forcible return to her country of origin, which was not compatible with articles 3 and 13 ECHR since a non-suspensive appeal against a decision rejecting the applicant’s asylum application was still pending and with sufficient grounds.
As a result, the Judge held that there was no reason to extend the duration of the applicant’s administrative detention.
Facts:
On 19 March 2017, the applicant, whose country of origin is not mentioned, was notified with an order requiring her to leave French territory. She was placed in a detention centre the same day.
A first request for extension of the duration of the administrative detention was granted on 21 March.
In parallel, on 4 April, the applicant filed an appeal to the CNDA (National Asylum Court) against a decision of the OFPRA (French Office for the Protection of Refugees and Stateless Persons) rejecting her asylum application, which was based on reasons that appeared worthy of consideration (risk of persecution on religious grounds). The appeal in this specific case did no have a suspensive effect.
A second request for extension of the duration of the administrative detention was filed on 17 April.
Decision & reasoning:
The Judge of the liberties and detention considered that the appeal against the OFPRA’s refusal to grant asylum had, in this case, no suspensive effect. As a consequence, the removal of the applicant could happen anytime during the duration of the administrative detention, even though the decision of the CNDA has not yet been taken, and may be in her favour.
Such situation is not compatible with the fact that her appeal needed to be an effective remedy. Indeed, the Judge held that there was a violation of articles 3 and 13 ECHR, which is applicable in French domestic law, since the CNDA had not yet taken a decision and that this decision may have been in the applicant’s favour.
The request of extension of the duration of the administrative detention was denied.
Outcome:
Request for extension of the duration of the administrative detention was denied.
Observations/comments:
This summary was written by Jenna Ruberti, LLM student at Queen Mary University London.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Art. L.552-1 |
| L552-2 |
| L552-7 and R.552-11 of the Code on the entry and residence of foreigners (CESEDA) |