France - Council of State, 13 November 2013, CIMADE, Mr. B, No 349735 and 349736

Facts:

On 10 July 2008, pursuant to the Geneva Convention, the Applicant, who is a Russian national of Chechen origin, was granted refugee status by Polish authorities because of his exposure to a risk of persecution in Russia stemming from his participation in Chechnya’s first war of independence.

The Applicant claimed that, while in Poland, he had been threatened by persons of Chechen origin, including the person who had tortured him in 2002 in Chechnya. Subsequently, he fled from Poland to France, where he applied for asylum. His application for asylum was rejected on 24 April 2009 by the Office for the Protection of Refugees and Stateless Persons (OFPRA). He appealed the decision to the National Asylum Court (CNDA).

CIMADE (a French declared association governed by the “1901 Law” relating to the Associations) wished to intervene in the proceedings. The CNDA rejected the intervention.

CIMADE (supported by the interventions of Amnesty International France and Action des Chrétiens pour l’abolition de la torture) and the Applicant lodged an appeal before the Council of State (CS).

Decision & reasoning:

Interventions

Firstly, the CS accepted CIMADE’s intervention as they had  demonstrated a sufficient interest given the nature and the subject of the dispute. Conversely the CNDA noted that, in cases of a dispute of full litigation (litige de plein contentieux), only persons exercising a personal right likely to be affected by the decision may intervene in the proceedings. The CS held that the CNDA erred as a matter of law in rejecting CIMADE’s intervention.

The CS also admitted the interventions of Amnesty international France and Action des Chrétiens pour l’abolition de la torture, supporting CIMADE’s appeal.

Refugee Status in a Second state

The CS referred to (i) Article 1A(2) of the Geneva Convention (July 28, 1951) and the Protocol relating to the Status of Refugees (Jan 31, 1967); (ii) Article 31(1) of the Geneva Convention; and (iii) Article 33(1) of the Geneva Convention.

Based on those provisions, the CS explained that where a person has been granted refugee status by a state which is a party to the Geneva Convention, the Applicant cannot, without having been admitted for residence, apply for the rights set out in the Geneva Convention in another state, as long as the Applicant’s current refugee status benefits are in force and guaranteed.

Nevertheless, if a person, who has been granted refugee status by a state which is a party to the Geneva Convention, demonstrates well-founded fears that the protection granted by the initial state of refuge is no longer effective, such person’s application for refugee status in another state party to the Geneva Convention must be considered as if the Applicant is applying for the first time.

The CS specified that, in such a case, the French authorities shall examine the Applicant’s request, considering the persecution that the Applicant would be subjected to, as of the date of the application, in the Applicant’s state of national origin. Should the Applicant’s request be rejected, the Applicant may not invoke any residency right under the asylum right (subject to, as the case maybe, the relevant European Union laws). However: (i) the Applicant’s refugee status in the first state precludes the Applicant, as long as such status is held, from being returned to the Applicant’s state of national origin; and (ii) the circumstances that may have led to the application in a second state (to be considered as an initial application) might preclude the Applicant from being returned to the state which initially granted refugee status.

Given the fundamental rights and freedoms protected by the EU, the CS held that where the Applicant is first granted refugee status by a member state, the fears invoked by this person pursuant to the application shall be presumed unfounded, except when the Applicant provides evidence to the contrary by any means.

The CS further specified that the presumption against well-founded fears shall not be applicable in cases where the initial member state of refuge has implemented measures derogating from its obligations under the Article 15 of the ECHR or is subject to prevention or sanction proceedings (provided for in Article 7 of the Treaty on European Union) because of a violation of the values on which the European Union is founded.

The CS further considered that the Applicant shall be entitled to invoke and demonstrate any detailed facts or evidence likely to establish the materiality of the Applicant’s fears as well as the lack of protection the Applicant is suffering within the state which initially granted refugee status. Further, the CS held that even if France could consider the fact (amongst other factors) that the Applicant had not requested or attempted to request the protection of the initial state of refuge before applying for refugee status in another state, this factor may not, per se, prevent the Applicant from providing the evidence necessary to reverse the presumption.

Consequently, the CS decided that the CNDA erred as a matter of law in rejecting the Applicant’s request. The Applicant is a national of a non-European Union state, a refugee in Poland, and his application was rejected on the sole ground that he did not demonstrate having requested or having attempted to request the protection of the Polish authorities. He was entitled to rebut the presumption that his asylum application in France was unfounded by any means.

The Applicant is well-founded in requesting an annulation of Article 2 and 3 of the challenged decision.

Outcome:

Appeal granted. The National Asylum Court’s decision dated 30 March 2011 rejecting the Applicant’s application for the refugee status was annulled.

The case has been remitted to the National Asylum Court. 

Observations/comments:

French doctrine articles regarding the case:

AJDA 2013 p.2427, Asile sur asile ne vaut (Aurélie Bretonneau et Jean Lessi);

JCP Semaine juridique, Editions administrations et collectivités territoriales, N° 13, 31 mars 2014, Clarifications quant au statut du « réfugié demandeur d’asile »;

     Revue Droit administratif, Janvier 2014, n°1 comm. 5, Le statut des demandeurs d’asile titulaires d’une protection dans un pays      de l’Union européenne (Lucile Abassade).

This case summary was completed by Linklaters LLP.