France – Council of State, 11 April 2018, N° 412514
Keywords:
| Keywords |
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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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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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. |
Headnote:
The Council of State annulled the decision from the French national court on asylum (CNDA) after noting it had not examined the applicant’s submission that he did not have access to an interpreter during his personal interview for a re-examination of his asylum application. He had indeed appealed against the decision of the French immigration authorities (OFPRA) rejecting his claim despite his inability to be understood.
Facts:
The applicant, M. A…B…, argues that he was interviewed for the re-examination of his asylum application by the OFPRA, without having been able to benefit from a Chechen interpreter.
Following the rejection of his claim, the applicant lodged an appeal to get an annulment before the CNDA.
Resulting in another rejection, he made an application to the Council of State for judicial review.
Decision & reasoning:
The Council of State first recalls that under articles L. 723-6 and L. 733-5 of the Code of Entry and Stay of Foreigners and the Right to Asylum (CEDESA), the claimant is to be heard in the language of his choice or in a language he has a sufficient knowledge of during his personal interview for the re-examination of his asylum application. Failing this, it will be for the CNDA to annul the decision from the OFPRA and to undertake a review of this re-examination after having judged that the applicant was in the impossibility to be understood.
In this case, the Council of State notes that the CNDA has not addressed the applicant’s merit in relation to the absence of a Chechen interpreter during his personal interview.
Without examining the other pleas, the Council of State grants the applicant’s appeal and refers the case back to the CNDA.
Outcome:
Appeal granted
The Council of State also orders the OFPRA to pay to the applicant’s lawyer the sum of 2400€ for the costs which incurred unless the aforementioned company renounces its right to receive it, under Article L. 671-1 of the administrative code of justice and Article 37 of the law of the 10 July 1991.
Observations/comments:
This case summary was written by Celia Minh Boyon, LLM student at Queen Mary University, London.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| L. 723-6 |
| France - Law N° 91-647 of 10 July 1991 (Article 37) |
| France - Code of Entry and Stay of Foreigners and the Right to Asylum (Articles L. 723-6 |
| L. 733-5) |