France - Administrative Tribunal of Lille, 2 November 2015, Association MEDECINS DU MONDE et al., No. 1508747
| Country of Decision: | France |
| Court name: | Administrative Tribunal of Lille (Jean-François Molla, judge for “emergency interim relief measures”) |
| Date of decision: | 02-11-2015 |
| Citation: | Administrative Tribunal of Lille, 2 November 2015, Association MEDECINS DU MONDE et al., No. 1508747 |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Legal assistance / Legal representation / Legal aid
Description
Legal assistance: "practical help in bringing about desired outcomes within a legal framework. Assistance can take many forms, ranging from the preparation of paperwork, through to the conduct of negotiation and representation in courts and tribunals.” Legal aid: state funded assistance, for those on low incomes, to cover legal fees." |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Accommodation centre
Description
Any place used for the collective housing of asylum seekers. |
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Material reception conditions
Description
“Reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.” |
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Health (right to)
Description
Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness. Member States shall also ensure that beneficiaries of refugee or subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such statuses. |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
The Applicants asked the Administrative Tribunal of Lille (the “Tribunal”) to order the relevant authorities to take urgent interim relief measures to guarantee the fundamental freedoms of the population of the Calais camp.
The Administrative Judge acceded to several of the applicants’ demands (identification of vulnerable minors, hygiene, cleanliness, emergency vehicle access) and held that the situation in the Calais camp constituted a grave and blatantly illegal breach of the right of the persons residing there not to be subjected to degrading and inhuman treatment.
Facts:
Faced with an ever larger outpouring in Calais of migrants only trying to reach Great Britain, French national and local public authorities have opened in the Calais suburbs the Jules Ferry centre in April 2015. This shelter provides living accommodations for about 120 women and children. Around this centre, an illegal camp made up of various precarious living accommodation now presents a population of about 6000 persons (including 300 women and 50 children). The majority of these persons do not have the status of refugees nor have they requested it.
The Applicants are Médecins du Monde and Secours Catholique-France, whose purpose is, among others, to provide aid to refugees, as well as six migrants whose identities and nationalities have not been disclosed.
The Applicants made requests pursuant to the procedure referred to as “liberty-emergency interim relief measures”.
The Applicants made the following requests:
A.
1. Order any appropriate measures to prevent grave and blatantly illegal breaches of the fundamental freedoms of population of the Calais camp near the Jules Ferry centre.
B. Order the referenced authorities to take the following actions with respect to the population of the Calais camp, within 48 hours and apply a penalty payment of 100 euros/day in the event of delay:
2. The prefect of Pas-de-Calais to:
2.1. guarantee them the right to emergency accommodation and access to accommodation under article L2215-1§4 of the general code of local authorities ;
2.2. ensure the registration of their asylum requests and direct them to an accommodation centre;
2.3. establish a permanent presence of public and private information providers for asylum seekers;
2.4. publish an information notice on the asylum procedure in two local newspapers;
3. The prefect of Pas-de-Calais and the mayor of the city of Calais to:
3.1. conduct an inventory of public building resources so that unoccupied buildings can be designated as temporary and emergency accommodation;
3.2. offer persons living in the camp emergency accommodation solutions without delay;
3.3. offer at least two daily meal services;
3.4. ensure the physical care of patients in the health facilities of Calais;
3.5. immediately put extremely vulnerable persons under protection;
3.6. put in place a security process;
3.7. set up hygiene and safety equipment in the Calais camp (including sanitation works);
4. The prefect of Pas-de-Calais and the director of the Regional Health Agency (“RHA”) of Nord-Pas-de-Calais to:
4.1. allocate health facilities to deal with the population of the camp’s needs;
4.2. ensure the creation of a place for healthcare;
4.3. ensure the creation of a mobile team of healthcare and social services professionals.
Decision & reasoning:
The Administrative Tribunal (“the Tribunal”) recognised the existence of an emergency situation. It held that, even though the camp is illegal and the persons living in it have no other goal than to reach Great Britain, and even though the number of persons in the camp increases every day, public authorities must ensure that the most basic rights of the persons living in the camp, which constitutes fundamental freedoms, are guaranteed.
A. Concerning the requests on the basis of the liberty-emergency interim relief measures
The so-called liberty-emergency interim relief measures (provided for in article L521-2 of the Administrative Justice Code) allow applicants to request an administrative judge to take useful emergency measures (within 48 hours) in case of a grave and blatantly illegal breach of a fundamental freedom.
The Administrative Tribunal considered that the Applicants’ requests for emergency accommodation, sanitation works and a system of information for asylum seekers fell outside the scope of this procedure because those problems could not be answered by useful emergency measures.
B. Concerning the breaches of the right to accommodation and the right not to be subjected to inhuman or degrading treatment
1) Article L345-2-2 of the Code on Social and Family Action ensures access to accommodation and healthcare for most vulnerable persons. The Tribunal held that the Applicants’ requests on this ground fell within the scope of the liberty-emergency interim relief measures. This reasoning is based :
(i) the violation of the provisions of article L345-2-2 of the Code on Social and Family Action would constitute a grave and blatantly illegal breach of the right not to be subjected to an inhuman and degrading treatment ;
(ii) it would be possible to answer a breach of these provisions by ordering emergency measures.
However, the Tribunal noted that the prefect of Pas-de-Calais and the RHA of Nord-Pas-de-Calais had announced measures targeted at guaranteeing these rights except for a census of unaccompanied minors.
Consequently, the Tribunal held that the Applicants’ requests had to be rejected as groundless, provided that the announced measures were effectively carried out shortly. However, the Tribunal also held that there was a basis to order the prefect to carry out a census of all unaccompanied minors in a state of distress within 48 hours and contact the department of Pas-de-Calais to offer them a shelter.
2) The Tribunal examined the Applicants’ requests meant to ensure the provision of meal services to the population of the camp. The Tribunal held that these requests had to be rejected because the relevant authorities had already taken measures to provide meal services.
3) With regard to requests related to the lack of waste collection services and access for emergency vehicles, the Tribunal stated that, due to a blatant lack of sufficient access to water and sanitation facilities, persons living in the camp were faced with insufficient care for their basic hygiene, drinking water and accommodation needs and they were exposed to health and safety risks (contracting diseases due to a lack of proper hygiene conditions) and danger in case of an emergency situation.
The Tribunal reasoned that this constituted a grave and blatantly illegal breach of their right not to be subjected to degrading and inhuman treatment.
Consequently, the Tribunal ordered the prefect of Pas-de-Calais and the city of Calais to install new drinking water and hygiene equipment and a system to collect waste as well as ensure access for emergency services, within 8 days after the notification of the Tribunal’s decision and with the application of a penalty payment of 100 euros/day in the event of delay.
C. Concerning the breaches of asylum provisions
The Tribunal noted that the State showed no blatant lack of action concerning the provision of information to the population of the camp, as evidenced by various information channels.
Similarly, the Tribunal reasoned that the State showed no blatant lack of action in the treatment of asylum requests.
Therefore, it held that the Applicants had failed to demonstrate that the means of information on asylum and the treatment of asylum requests were insufficient.
The Tribunal therefore rejected the Applicants’ requests made on this ground.
D. Concerning the right to security
The Tribunal stated that the State ensured the security of the population of the camp through police patrols and special, on-the-spot monitoring of specific risks, and, therefore, the Tribunal held that the State showed no blatant lack of action in this area. The Tribunal therefore rejected the Applicants’ requests made on this ground.
Outcome:
The Tribunal partially granted the Applicants’ requests by ordering a census of unaccompanied minors in a state of distress within 48 hours of notification of the Tribunal’s decision and the execution of works in order to achieve better hygiene and safety conditions within 8 days of the judgment with the application of a penalty payment of 100 euros/day in the event of delay.
The Tribunal rejected the other requests.
Subsequent proceedings:
Council of State, 23 November 2015, Association Médecins du Monde et al., No. 394540: rejected all appeals by public authorities and associations : confirmed entirely the decision of the Administrative Tribunal of Lille.
Observations/comments:
On 19 February 2016, the prefect of Pas-de-Calais ordered the removal of the persons residing in the so-called “South Zone” of the Calais camp in order to carry out the census of unaccompanied minors and the sanitation works ordered by the Tribunal in this case (judgement no. 1508747). The order was challenged before the Administrative Tribunal of Lille by various applicant associations.
By a judgment on 25 February 2016, M. Sharifi A et al., no. 1601386, the Administrative Tribunal of Lille (V. Quemener, judge for liberty-emergency interim relief measures) partly suspended the execution of the order of the prefect in so far as it concerns “living areas”. The order of the prefect in response to this judgment was, therefore, partially suspended until a judgement on the merits of the order was issued.
Consequently, the removal of the population of the “South Zone” of the camp (save for the living areas) was authorised.
The judgement partially suspending the order of the prefect was appealed by various associations before the Council of State on 26 February 2016.
This case summary was written by Linklaters LLP.