France - Administrative Court of Appeal of Lyon, 26 October 2015, Mme B… C… A…, n°14LYO1750

Facts:

On 22 October 2013, the Prefect (i) refused to grant a residence permit to Ms. A, (ii) required her to leave the French territory and (iii) designated Ms. A’s country of return as the Democratic Republic of Congo or any other country where she could lawfully be admitted.

Subsequently, Ms A brought an action for annulment against the decision of the Prefect before the administrative tribunal of Grenoble.

On 24 April 2014, the Tribunal of Grenoble (the “Tribunal”) cancelled part of the Prefect’s decision determining the country of return as the Democratic Republic of Congo or any other country where she could lawfully be admitted.

The Tribunal held that the Prefect’s decision was in violation of Article 3 of the European Convention on Human Rights because Ms. A would be subject to risk in the Democratic Republic of Congo. In particular, the Tribunal held that Article 3 had been violated since the applicant had  produced a certificate of the Secretary General of the non-governing Congolese party and a “wanted notice” for violation of security of the State proving the risks she was incurring in Democratic Republic of Congo. 

The Prefect appealed this decision to the Administrative Court of Appeal of Lyon (the “Administrative Court of Appeal”) on the fact that it was annulling the determination of the country of return.

He argued that the Tribunal wrongfully cancelled its determination of the Democratic Republic of Congo as the country of return based on the risks that she would incur there because:

1. Ms. A’s declarations did not convince the various refugee administrative authorities about the dangers she incurred in the Democratic Republic of Congo;
2. Ms. A did not prove the authenticity of the documents that she produced to the Tribunal, which were produced by her for the first time; and
3. The decision did not violate Article 3 of the European Convention on Human Rights.

In addition, the Prefect argued that even if the Tribunal considered there was sufficient risk for Ms. A to return to the Democratic Republic of Congo, the Tribunal wrongfully cancelled the entire decision determining the country of return, as this decision provided for other countries of return (where Ms. A would have been lawfully admitted to.

Decision & reasoning:

Under Article L.513-2 of the French Code on Entry of Foreigners and Right to Asylum, a third country national cannot be returned to a country if the latter proves that his/her life or freedom would be threatened or he/she would be exposed treatments contrary to Article 3 of the ECHR.

• Whether Ms. A could be returned to the Democratic Republic of Congo

As a preliminary matter, the Administrative Court of Appeal noted that the Prefect failed to establish that the documents showing the dangers Ms. A would incur if she were to return to the Democratic Republic of Congo were not authentic. In such cases, the burden of proof lied on the Prefect which had to establish the absence of authenticity of the documents produced. Here, the Prefect’s argument that the documents which Ms. A produced before the Tribunal were only copies and that they had not convinced the National Court of Asylum and the French Office for the Protection of Refugees and Stateless Persons, was not sufficient to meet this burden of proof.

As a result, the Administrative Court of Appeal held that the Prefect’s argument was insufficient to overturn the Tribunal’s finding which annulled, under Article 3 of the European Convention on Human Rights, the Prefect’s decision determining the Democratic Republic of Congo as a country of return.

• Whether Ms. A could be returned to another country where she could lawfully be admitted

Here, the Administrative Court of Appeal held that the existence of dangers to Ms. A in the Democratic Republic of Congo was only a ground for Ms. A not returning in the Democratic Republic of Congo - but there was no impossibility to return Ms. A to other countries of return where she could lawfully be admitted.

Therefore, despite the existence of danger to Ms. A in the Democratic Republic of Congo, the Administrative Court held that Ms. A was still required to leave France as she could be still admitted to other countries.  

The Administrative Court of Appeal thus validated part of the Prefect’s decision as it provided other countries of return where Ms. A would lawfully be admitted. 

Outcome:

The Administrative Court of Appeal affirmed the Tribunal’s ruling that the Prefect’s decision to determine the Democratic Republic of Congo as a country of return was in violation of Article 3 of the European Convention on Human Rights.

However, the Administrative Court of Appeal cancelled part of the Tribunal’s ruling as it validated the Prefect’s decision to the extent that it provided other countries where Ms. A would lawfully be admitted.

Appeal of the Prefect was partially granted.

Observations/comments:

This case summary was completed by Linklaters LLP.