France - Council of State, 10 October 2014, Association ELENA and others, Association FORUM REFUGIES-COSI, Nos. 375474 and 375920.

Facts:

The Applicants sought:

1. To appeal the decision of the Board of OFPRA to include Georgia, the Republic of Albania and the Republic of Kosovo in the list of safe countries of origin;
2. A preliminary ruling by the Court of Justice of the European Union (CJEU) regarding the compatibility of Articles 30 and 31 of Directive 2005/85/EC with Article 18 of the Charter of Fundamental Rights of the European Union; and
3. A preliminary ruling by the CJEU regarding the compatibility of the absence of suspensory effect of the appeal against the rejection of an asylum application with Article 47 of the Charter of Fundamental Rights of the European Union.

The preliminary rulings were requested in the context of the arguments of the applicants presented in the appeal against OFPRA’s decision.

Decision & reasoning:

1. Regarding the inclusion in the list of safe countries of origin of each of the three countries:

Republic of Albania

The Council of State rejected the appeal with regards to the Republic of Albania because the country has been linked to the European Union since 2009 under a Stabilisation and Association Agreement; is a party to the ECHR; has democratic institutions, the functioning of which have been progressively restored since the post-election unrest of 2009; and amended its Penal Code, Civil Code and Code of Civil Procedure in 2012 and 2013 in order to strengthen the protection of fundamental freedoms. Anti-corruption legislation was also enacted during this time.

The Council of State noted that some difficulties regarding the fight against organised crime still remain.

Georgia

The Council of State rejected the appeal with regards to Georgia because the country has democratic institutions and political leaders are chosen in free and pluralist elections; is a party to the ECHR; and is committed to continuing to implement significant reforms of the political and judicial systems in order to strengthen the Rule of Law in accordance with the agreement with the European Union.

The Council of State noted that some difficulties remain regarding the State’s ability to assert its authority and, in particular, the specific situation in South Ossetia and Abkhazia.

Republic of Kosovo

The Council of State granted the appeal with regards to the Republic of Kosovo because the country’s institutions are still significantly supported by international organisations and missions; its political and social contexts were, at the time of the decision, unstable; and some segments of the population are subject to violence without sufficient protection by public authorities.

1. Regarding the application of Directive 2005/85 which was questioned by the applicants to dispute the grounds for the OFPRA’s decision:

Article 30 (2) of Directive 2005/85 provides that Member States may retain national legislation in force on 1 December 2005 designating third countries, other than those listed in the annex to the aforementioned Directive, as safe countries of origin where they are satisfied that persons in those third countries are generally neither subject to persecution as defined in Article 9 of Directive 2004/83/EC nor torture, inhuman or degrading treatment or punishment.

Article L.741-4 of the Code for Entry and Residence of Foreigners in France and the Right of Asylum (CESEDA) codified by a law dated 10 December 2003 provides for a list of the safe countries of origin to be created. Article L.741-4 was in force before 1 December 2005.

Article L.722-1 of the CESEDA (also initially codified in 2003), which enables the Board of OFPRA to establish such a list, was amended by a law dated 24 July 2006. This amendment is not contrary to the principle of Article 30 of Directive 2005/85 and does not preclude the application of Article L.722-1 of the CESEDA.

1. Preliminary references to the CJEU:

The Council of State held that the safe country of origin list set out by Directive 2005/85/EC does not violate articles 1 and 3 of the Geneva Convention as the principle of non-discrimination does not prevent the implementation of different procedures for examining asylum applications from different countries of origin provided such distinction is not made for the purpose of assessing the right to obtain refugee status.  As a result, the CE also rejected the argument that Directive 2005/85/EC does not comply with article 18 of the Charter of Fundamental Rights of the European Union.

Further, the applicants made the argument that the disputed decision results in a separation of children from their parents. The CE rejected this argument on the grounds that the decision did not aim at or result in a separation of children from their parents and that isolated minors from countries of safe origin were cared for by the child care services where applicable. As a result, the CE held that the decision did not violate article 3-1 of the New York Convention of 1990.

Additionally, the Council of State held that the purpose of the disputed decision was related to the inclusion of three countries in the list of safe country of origin and not to the applicable procedure to actions brought against OFPRA’s decisions. As a result, the disputed decision has no impact on the lack of suspensive effect of appeals against the refusal of an asylum application for nationals of a safe country of origin. Therefore, reasoning based on Articles 47 of the Charter of Fundamental Rights of the European Union (“CFREU”) and Article 13 of the European Convention on Human Rights (“ECHR”) is to be disregarded.

Outcome:

The contested decision is partially annulled :

-        Appeals regarding the inclusion Republic of Albania and Georgia are denied.

Appeal regarding the inclusion of the Republic of Kosovo is granted.

Subsequent proceedings:

On 9 October 2015, the French Office for the Protection of Refugees and Stateless Persons (OFPRA) reintroduced Kosovo in the French list of safe countries of origin, in line with the new definition of "safe country of origin" provided under the law on asylum reform adopted in July 2015. From the 1 November OFPRA has been able to channel applications from Kosovar asylum seekers into the accelerated procedure, entailing shorter time-limits for taking a decision  at first instance and lodging appeals.

Observations/comments:

This case summary was written by Linklaters LLP.