France - Council of State, 18 December 2008, Ofpra vs. Ms. A., n°283245
Keywords:
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
Headnote:
The principle of family unity, which is a general principle of refugee law resulting in particular from the 1951 Refugee Convention, is not applicable to persons falling within the scheme of subsidiary protection, as defined both by the Qualification Directive and by the internal legislative provisions which transpose it.
Facts:
The applicant from Armenia, lodged an asylum application in 2004, along with her husband who was also Armenian. The two applications were rejected by the French Office for the Protection of Refugees and Stateless Persons (Ofpra). On appeal, the Commission des Recours des Réfugiés (Refugee Appeals Commission) (CRR/CNDA) granted subsidiary protection to the applicant’s husband and, in another decision, decided that the applicant could only benefit from subsidiary protection in accordance with the principle of family unity. The Ofpra requested the Council of State to quash this decision.
Decision & reasoning:
The Council of State firstly recalled the provisions of Article 1 A (2) of the 1951 Refugee Convention as well as the French legislative provisions relative to subsidiary protection (articles L.712-1 and L.712-3 Ceseda). It also quoted the provisions of Articles 23.2 and 24.2 of the Qualification Directive. It recalled that in compliance with the objectives of this directive, French legislation provides that a temporary residence permit is automatically granted to the foreigner who was granted subsidiary protection as well as to his/her spouse and minor children, except for reasons of public order (…).
The Council of State declared secondly that the Cour Nationale du Droit d’Asil (National Asylum Court) (CRR/CNDA) based its decision to grant subsidiary protection to the applicant on the ground that, as the spouse of a person of the same nationality who was granted subsidiary protection, she was entitled to the benefit of the principle of family unity which is a general principle of refugee law resulting in particular from the 1951 Refugee Convention. The Council of State considered that the CRR/CNDA made a legal error by basing its decision on this ground whereas it followed from the above-mentioned provisions that refugee law arising from the 1951 Refugee Convention is not applicable to persons falling within the scheme of subsidiary protection, as defined both by the Qualification Directive and by the internal legislative provisions which transpose it.
The Council of State therefore concluded that the request of the Ofpra to quash the decision of the CRR/CNDA was well-founded. The applicant should ask the Prefecture to grant her a temporary residence permit. The case was referred to the CNDA.
Outcome:
The case was referred to the CNDA.
Subsequent proceedings:
Before the CNDA, the applicant argued that she should be recognized as refugee or, at least, granted subsidiary protection on an individual basis. In a decision made on 20 April 2010 (CNDA, 20 avril 2010, Mme A., n°487615/04013975), the CNDA rejected her application for refugee status but considered that the acts from which she suffered because of her husband’s activities amounted to inhuman and degrading treatment and concluded that she should be personally granted subsidiary protection.
Observations/comments:
Regarding the issue of family unity in the context of subsidiary protection, this decision gives a distinct interpretation than the CNDA in its decisions CNDA, Sections réunies, 12 mars 2009, Mlle K. n° 639908 et Mme D. épouse K., n° 638891, (also included in this database).
The Council of State however confirmed its present findings in a subsequent decision (CE, 15 December 2010, Ofpra c. Ms. A., n° 332186).
NB: The CNDA (National Asylum Court) was called CRR (“Commission des recours des réfugiés”, Refugee Appeals Board) until the Act n°2007-1631 of 20 November 2007.