France - Council of State, 16 May 2012, No. 331855
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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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
Headnote:
Article L. 712(1) (b) of the CESEDA requires the asylum judge to examine whether the circumstances allow the risks referred to in this provision to be regarded as proven. The protection provided for in this Article is only granted where there is a real, rather than possible, risk of inhuman or degrading treatment in the event of a return to the Applicant’s country of origin.
Facts:
The Applicant, of Armenian origin, entered France in December 2007. She submitted an application for asylum in France on 23 April 2008. Her application was rejected by the French Office for the Protection of Refugees and Stateless Persons (OFPRA) on 15 May 2008. On appeal by the Applicant, the National Asylum Court (CNDA) quashed the OFRA’s decision and in a ruling of 10 June 2009 granted her the benefit of subsidiary protection. The OFPRA lodged an appeal on a point of law against this CNDA decision before the Council of State.
Decision & reasoning:
The Council of State considered that the CNDA had made an error in law in considering that the evidence in the file submitted to the trial judge and the statements made by the Applicant before the court “did not allow for exclusion of the possibility that there were valid reasons to assume that” in the event of a return to her country, the Applicant would be exposed to a risk of inhuman or degrading treatment within the meaning of Article L.712 (1) (b) of the CESEDA. The CNDA should have looked into which circumstances would prove that this risk was not only a potential but indeed a real one, as Article L. 712 (1) required it to do.
Outcome:
The CNDA decision n° 629397 of 10 June 2009 was quashed.
The case was referred back to the CNDA.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |
| France - CJA (Code of Administrative Justice) |
| France - law no. 91-647 of 10 July 1991 |