France - Administrative Court of Appeal of Metz, 26 November 2019, N° RG 19/00909
| Country of Decision: | France |
| Country of applicant: | Afghanistan |
| Court name: | Administrative Court of Appeal of Metz |
| Date of decision: | 26-11-2019 |
| Citation: | (France) Administrative Court of Appeal of Metz, N° RG 19/00909, 26 November 2019 |
Keywords:
| Keywords |
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Benefit of doubt
Description
The advantage derived from doubt about guilt, a possible error, or the weight of evidence. “When statements are not susceptible of proof, even with independent research, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Freedom of movement (right to)
Description
Generally: “This right is made up of three basic elements: freedom of movement within the territory of a country, right to leave any country and the right to return to his or her own country." In an EU context: "A fundamental right of every citizen of an EU Member State or another European Economic Area (EEA) State or Switzerland to freely move, reside and work within the territory of these States. Notes: 1. This is a fundamental right enshrined in Article 45 of the Charter of Fundamental Rights of the European Union. 2. Whilst initially one of the founding rights in the establishment of the European Union, it has also been extended, via various acquis and agreements (e.g. see Protocol 19 of the Treaty on the Functioning of the EU), to other EEA states (i.e. Iceland, Liechtenstein, Norway) plus Switzerland and certain categories of third-country nationals (as outlined in Notes 4. and 5. below). 3. Some Member States have applied transitional arrangements that currently restrict freedom of movement of workers/(citizens) of EU-2 Member States (see http://ec.europa.eu). 4. Whilst third-country nationals have the right to travel freely within the Schengen area, taking up residence in another Member State is covered by specific legal instruments, detailed below. 5. Third-country nationals may take up residence in another Member State depending on their status and subject to the necessary conditions being met. For third-country nationals who are long-term legal residents in an EU Member State, this is covered by Chapter III of Council Directive 2003/109/EC, whilst for third-country nationals with highly qualified employment, this is covered by Article 18 of Council Directive 2009/50/EC.” |
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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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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.” |
Headnote:
The administrative detention of an Afghan national was imposed on the basis of a procedural error due to the lack of relevant documentation and unjustified information by the French authorities (Prefect and Prosecutor).
Facts:
Following an identity check in France, an afghan national, was held in an administrative detention centre, for a maximum period of 48 hours.
The applicant was an asylum-seeker in Switzerland and was entering the French territory for a period not exceeding two days.
The French authorities submitted a request to the first instance judge (Judge of Freedoms and Detention), for an extension of the administrative detention for a time period of 28 days. The first instance tribunal rejected the request. As a consequence, the French authorities brought the decision in front of the Administrative Court of Appeal of Metz.
Decision & reasoning:
Firstly, the CA recalled that the first instance’s judge rejected the request for the extension of the detention by the french authorities, based on Article L. 554-1 of the Code of Entry and Stay of Foreigners and Asylum Law (CESEDA). This decision relied on the fact that the applicant’s administrative detention was a disproportionate measure in the light of his intention of staying no more than two days on the French territory.
Then, the Court of Appeal evaluated the appeal of the French authorities’, which was established on the fact that a procedural mistake was made by the first instance judge. The CA reviewed the argumentation of the French authorities on the omission from the first instance’s judge to report that the applicant had already sought asylum in Switzerland. Additionally, the French authorities reported that the applicant was sought by the Swiss police for suspicion of participating in terrorist activities. The French authorities added that the first instance judge denied the possibility of a refusal from the Swiss authorities to readmit the applicant on their territory, following a readmisison request that has been submitted under the Dublin Regulation.
Finally, the CA concluded that no documentation submitted within the appeal procedure was able to prove that the applicant was sought by the Swiss police for terrorist activities. Moreover, no arrest warrant was issued against him. Therefore, the applicant was benefiting from the presumption of innocence and the French authorities made a serious procedural mistake by requesting the extension of the applicant’s administrative detention.
The CA ordered the immediate release of the applicant and recalled the obligation to leave the French territory.
Outcome:
Appeal denied.
Observations/comments:
The judgment put a light on the intrinsic judicial and administrative procedural issues that can threaten individual fundamental rights and cause unjustified administrative detention decisions.
This summary was drafted by Clémentine Le Roy, LLM student at the Gent University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Articles L 552-9 and R 552-12 Code of Entry and Stay of Foreigners and Asylum Law (CESEDA) |