France - Administrative Tribunal of Nantes, decision of 16 September 2014, No 1407765
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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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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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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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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Visa
Description
"The authorisation or decision of a Member State required for transit or entry for an intended stay in that Member State or in several Member States. The nature of the visa shall be determined in accordance with the following definitions: (i) ‘long-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that Member State of more than three months; (ii) ‘short-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that State or in several Member States for a period whose total duration does not exceed three months; (iii) ‘transit visa’ means the authorisation or decision of a Member State for entry for transit through the territory of that Member State or several Member States, except for transit at an airport; (iv) ‘airport transit visa’ means the authorisation or decision allowing a third-country national specifically subject to this requirement to pass through the transit zone of an airport, without gaining access to the national territory of the Member State concerned, during a stopover or a transfer between two sections of an international flight. Note: For some third countries (specifically, and as of December 2011, Albania, Bosnia and Herzegovina, FYR of Macedonia, Georgia, Moldova, Montenegro, Serbia, Russian Federation and Ukraine) there are Visa Facilitation Agreements which facilitate, on the basis of reciprocity, the issuance of visas for an intended stay of no more than 90 days per period of 180 days to the citizens of the European Union and the third country party to the agreement. These are often concluded at the same time as Re-admission Agreements." |
Headnote:
A claim challenging the refusal to grant a visa -in order to claim asylum on French territory- qualifies as being urgent. The consular authority is not qualified to assess the asylum claim.
Facts:
In this case the applicant, a Christian national (her son and two other minor children) from Syria (Aleppo) with Armenian origin, requested in February 2014 a short-term visa from the French consular authority based in Beirut. This request for a visa was made in order to enter French territory and claim asylum there on grounds of inhumane and degrading treatment that the family had suffered in Syria. The request for the visa was rejected by the French consular authority on the 25th of July 2014, who indicated that the applicants asylum application had been refused.
Decision & reasoning:
The procedure relates to a liberty-emergency interim relief measure (provided for in article L.521-2 of the Administrative Justice Code), which allows 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.
Regarding the emergency of the procedure, the Administrative tribunal held that the applicants’ profiles and the fact that they lived in Aleppo, meant that they were personally exposed to risks in Syria. . The Consular authority’s refusal to grant the visa on the basis that the asylum claim is unfounded was clearly intended to prevent the applicant from legally entering French territory and claiming asylum there, thus the claim can be considered as being urgent (even though there is no provision in the CESEDA -Code of the Entry and Stay of Foreigners and Asylum Law- regarding granting visas to people claiming asylum).
Additionally, given the constitutional right of asylum, its status as a fundamental liberty and the corollary right to request asylum, the assessment of risks of persecution should only be carried out by the OFPRA (French Protection Office for Refugees and Stateless persons) and the CNDA (National Court of Asylum). By assessing the asylum claim and declaring it unfounded and subsequently refusing to grant the visa on this basis, the Consular authority violated obligations linked to reception of asylum seekers and on the basis of the particular circumstances of the case was a serious and manifestly illegal infringement of a fundamental liberty, leading to serious consequences for the applicants.
Hence, the Tribunal required the Ministry of Interior to grant the visa.
Outcome:
Tribunal accepts the urgency of the request.
The intervention of GISTI association in the case is accepted.
The Ministry of Interior is requested to grant the short-term visa to enter French territory to the applicant within 5 days of the judgment.
Subsequent proceedings:
Observations/comments:
This case summary was completed by Marina Pinault, an LLM graduate of Leiden University.