France - Council of State, 10 December 2010, Cimade and others, n° 326704
Keywords:
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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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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. |
Headnote:
The transposition of the Asylum Procedures Directive (APD) in French legislation is incomplete on certain aspects (provision of information to applicants for asylum; access to the report of the personal interview under the border procedure) and complete on other aspects.
Facts:
Several voluntary organisations argued before the Council of State that the implicit decision of the Prime Minister refusing to use its regulatory power in order to ensure the complete transposition of Articles 10.1 and 14.2 of the Asylum Procedures Directive (APD) in French legislation should be quashed.
Decision & reasoning:
The Council of State considered that the claim of the voluntary organisations was well-founded on two points:
Regarding Art 10.1 (a) of the APD concerning the provision of information to asylum applicants, the Council of State considered that the provision of information concerning the asylum procedure and the rights and obligations of the asylum applicants, was provided for under the border asylum procedure. Regarding the procedure to request a temporary residence permit at the Prefecture, the Council of State considered that, in spite of the existence of a Guide for asylum applicants available in six languages, the information which was given to asylum applicants was not “in a language which they may reasonably be supposed to understand”. In addition, no information was provided when the asylum application was lodged in situations other than these two cases. The Council of State found there was incomplete transposition of the APD on this point.
Regarding the access to the report of the personal interview (Article 14 of the APD) under the border asylum procedure, the Council of State considered that according to the provisions of Article 35.3 (d) of the APD the asylum applicant should have access to the report of his/her personal interview with the Ofpra at the border. The Council of State found there was incomplete transposition of the APD on this point.
However, the Council of State rejected the claim of the voluntary organisations on several points:
The Council of State considered that Article 10.1 (b) of the APD does not impose a requirement on the State to provide the services of an interpreter paid for out of public funds for assisting asylum applicants to fill in their asylum application form (keeping in mind that French legislation provides for free interpretation for the personal interviews at the border and at the Ofpra).
Regarding Article 10.1 (e) of the APD, the Council of State considered that the decision refusing a temporary residence permit, the decision not to submit the asylum application to the Ofpra in accordance with Dublin II Regulation and the decision to channel the application into the accelerated procedure do not constitute decisions whereby the determining authority grants or refuses asylum. For these decisions, the provisions of the ADP do not impose a requirement on the Member States to inform the asylum applicants in a language which they may reasonably be supposed to understand.
Regarding access to the full report of the personal interview within the regular procedure in country, the Council of State considered that the access to the report of the personal interview complies with the provisions of the APD and that access to the full report can in any case be requested in accordance with the Law of 17 July 1978.
Outcome:
The Council of State considered that the claim of the voluntary organisations was well-founded on certain points but rejected their claim on others.
The Council of State called on the Prime Minister to take the necessary measures within a period of four months after the notification of the present decision.
Subsequent proceedings:
The government adopted a decree on 29 August 2011 (Décret n°2011-1031, 29 août 2011, JO 31 août 2011) which entered into force on 1 September 2011.
Observations/comments:
Furthermore, the Council of State considered that other arguments submitted by the applicants in other memorandum (on the right to a remedy with suspensive effect under accelerated procedures, on the designation of third countries as safe countries of origin, on confidentiality, on the presence of third parties at the Ofpra personal interview) were inadmissible.