France – Council of State, 4 October 2016, M.A., N° 403799

Facts:

M.A, an Afghan asylum seeker was left without any accommodation by the French administration on September 6th 2016. He then repeatedly asked for the emergency accommodation services to find him a place to live without success.

He then decided to apply to the Administrative Tribunal of Toulouse for an injunction to be taken against the administration, arguing this constituted a serious and manifestly illegal breach of the right of asylum, of the corollary right to reception conditions and of the continuity of the emergency accommodation principle. Stressing the urgency of his situation the request was undertaken within the procedure set out in article L.521-2 of the Code of Administrative Justice  (‘CAJ’) requiring the Court to take any measure necessary to bring an end to the serious and manifestly unlawful breach of a fundamental liberty by the State.

The application was rejected at first instance by the Administrative Court of Toulouse as the emergency condition was not fulfilled.

M.A…  then appealed to the Council of State to have the Court Order set aside by founding his request on the same pretences, underscoring that the emergency feature appears as a right whenever a person’s dignity or physical condition is at stake. 

Decision & reasoning:

The Council of State first reminds the applicant of the necessary conditions to be fulfilled for a L. 521-2 CAJ application to succeed:

·         A public entity must act in breach of a fundamental right – with such breach being serious and manifestly illegal

·         The breach complained of must have as a consequence to put the claimant in a situation of emergency

According to article L.522-3 of the same Code, the Judge is entitled to reject an application by substantiated order  without any contradictory procedure to be engaged when he is satisfied that the emergency criteria is not fulfilled.

If the Council of State recognizes that denying an asylum seeker access to accommodation could amount to acting in disregard of a fundamental liberty, it made it clear that the first instance judge was sovereign in evaluating the seriousness and the unlawfulness of the breach by taking into account two sets of facts: namely the available resources which the administration disposes of and traits inherent to the person of the asylum seeker himself, particularly his age, his health or family situation.

In this case, and in light of the resources available to the administration, the judge first admitted that the administration was entitled to establish an order of priority when deciding whether to allow access of asylum seekers to reception centres. As M.A was at the time single, without any health issue nor supporting or looking after anyone, it was then confirmed that he had rightly been found not to be a priority. As such, if the administration might have acted in breach of a fundamental liberty, such violation was held not to be serious and manifestly illegal enough for M.A’s application to be successful. 

Outcome:

Appeal denied.

Observations/comments:

The urgency of a situation is not solely characterised by the extent of the violation of a fundamental liberty, but is equally measured by the consequences on the individual if such breach were to arise. As a consequence, the administration seems to be able to absolve itself from its obligations of material reception of asylum seekers when it can be proven that the individual does not present any particular trait of ‘vulnerability’.

This case summary was written by Romain Tourenne, a LPC student at BPP University.