France - National Court of Asylum, 21 February 2012, No 11032252
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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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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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
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Nationality
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. Nationality can be defined generally as the legal bond between a person and a State which does not indicate the person's ethnic origin. According to the Qualification Directive, when considered as a reason for persecution, the concept of nationality is not confined to citizenship or lack thereof and, in particular, includes membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State |
Headnote:
When the asylum claim of an applicant has not been individually assessed, the National Court of Asylum has to cancel the asylum refusal decision and the asylum claim has to be reassessed by the OFPRA.
Facts:
The applicant, a national from Eritrea born in Ethiopia from Eritrean parents, fears persecution on grounds of her nationality or religion (Pentecostal movement) if she returns to either Eritrea or Ethiopia. Indeed, she left Eritrea irregularly and would have to do her military service.
In Ethiopia, in 1999, the applicant along with her family were arrested by Ethiopian military forces, detained for 5 days and then deported to Eritrea. There, in 2002, her father was arrested (for unknown reasons) and imprisoned. She has had no news from him since. Because of this arrest, the interdiction of the Pentecostal movement in Eritrea and the fact that her brother was about to have to do his military service, the mother decided to go to Sudan in January 2003 and lived in Khartoum. After her mother passed away, the departure of her brother from Sudan , she felt threatened in Sudan because of her religious beliefs and feared to be returned to Eritrea. She therefore decided to leave for Turkey (2007), then Greece (where she lived for 4 years and was subject to difficult conditions) and arrived in France in June 2011.
She claimed asylum in France. This asylum claim was rejected by the OFPRA on the 17 November 2011.
Decision & reasoning:
According to the applicant, the decision relies on the application of an internal memo (from 3 November 2011) inviting to dismiss asylum claims from people whose fingerprints are damaged without assessing the arguments put forward in the claim and without interviewing the claimants.
The Court highlights that the applicant’s asylum claim was properly registered. Nonetheless, the OFPRA rejected that claim on the grounds that the applicant did not produce ID or travel documentation and that she deliberately made it impossible to identify her fingerprints, thus rendering the assessment of the asylum claim impossible for the OFPRA.
The Court held that, by rejecting the asylum claim on that basis and without carrying out an individual assessment on the basis of the arguments the claimant put forward and the possibility of receiving international protection status, the OFPRA violated an essential guarantee under article L.723-2 CESEDA. Therefore, the Court quashed the decision and requested the OFPRA to assess the claim again.
Indeed, even if the National Court of Asylum is not competent to rule on the legality of the OFPRA’s decision but can rule on whether or not to grant protection to the applicant by substituting its decision to the one of the OFPRA, this is different when the applicant was deprived of the essential guarantee of an individual assessment on the basis of the arguments he or she put forward. In that case, the National Court of Asylum cancels the decision and asks for the claim to be reassessed by the OFPRA.
Outcome:
The following organisations La CIMADE, la LDH and le COMEDE are not allowed to intervene in this case.
The asylum refusal decision (17 November 2011) is cancelled.
The asylum claim has to be re-assessed by the OFPRA.
Observations/comments:
This judgment from the National Court of Asylum follows a judgment from the Council of State (11 January 2012, No 354907) suspending the execution of the internal memo (3 November 2011).
This case summary was completed by Marina Pinault, an LLM graduate of Leiden University.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
New-York protocol 1967 to the Geneva Convention