ECtHR - I.M. v France, Application No. 9152/09

Facts:

In May 2008, the Applicant Mr I.M., a Sudanese national, was arrested by the Sudanese police and spent eight days in detention and a further two months under surveillance by the authorities, who interrogated him on a weekly basis using violence. In December 2008 he travelled to Spain with a view to crossing the border into France, carrying a forged French visa.

On 23 December 2008, Mr I.M. was arrested in France for “unlawful entry” and for “using forged documents”. During his police custody, his claim for asylum was not recorded by the police officer. On 26 December 2008, he was condemned in a “fast track” trial to one month in jail for “unlawful entry”. During his detention, another claim for asylum was not recorded. On 7 January 2009, the local prefect ordered the deportation of Mr I.M. to Sudan. On 12 January 2009, the appeal against his deportation order was rejected by an administrative judge of the administrative tribunal of Montpellier. On 16 January 2009, he was detained at the immigration detention centre of Perpignan awaiting his deportation to Sudan. On 22 January 2009, his claim for asylum was recorded by the French Office for the Protection of Refugees and Stateless Persons (OFPRA) and registered under the “fast track” procedure. On 30 January 2009, his asylum interview was conducted by a case worker of OFPRA and his application was denied on 31 January 2009. Mr I.M. appealed against that decision to the National Asylum Tribunal (Cour nationale du droit d’asile). Nevertheless, on 11 February 2009, Mr I.M. was brought by French police officers to the Sudanese Consulate to obtain travel document for his deportation.

On 16 February 2009 the Applicant applied to the European Court under Rule 39 of the Rules of Court, seeking to have the order for his deportation suspended. He alleged that enforcement of the decision of the French authorities to deport him to Sudan would place him at risk of treatment in breach of Article 3 (prohibition of inhuman or degrading treatment). Relying on Article 13 (right to an effective remedy), taken together with Article 3, he submitted that no effective remedy had been available to him in France owing to the fact that his asylum application had been dealt with under the fast-track procedure. The Court granted his request for the duration of the proceedings before it.

On 19 February 2011 the National Asylum Tribunal granted the Applicant refugee status. In the meantime he had obtained a certificate of residence from his municipality of origin in Darfur and a medical report issued by a psychiatrist stating that he had been subjected to violence. 

Decision & reasoning:

In relation to I.M.’s allegations of a violation of Art. 3 ECHR the Court stated that he no longer faced deportation to Sudan and had been granted refugee status, which is immediately issued with a residence permit. The Court therefore rejected his complaint concerning risks he would face if he were deported to Sudan.

With regards to allegations of a violation of Art. 13 ECHR, the Court reiterated that it merely had authority to verify that domestic procedures were effective and that they safeguarded human rights. The way in which States organised domestic remedies fell within States’ margin of appreciation and the aggregate of domestic remedies against arbitrary deportation could accordingly satisfy the requirements of Art. 13, even if no single remedy by itself did so. I.M. had made use of the remedies available in the French system in order to assert his complaint under Art. 3 ECHR, i.e. applying to OFPRA and then to the National Asylum Tribunal and appealing to the Administrative Court against his removal order. The Court observed that I.M. had been unable to report in person to the prefecture as required by French law and that the police reports provided some indications that he had attempted to apply for asylum while he was still in police custody. The authorities had taken the view that the asylum application lodged by the Applicant while in administrative detention had been based on "deliberate fraud" or constituted "abuse of the asylum procedure", as it had been submitted after the issuance of his removal order. It was on that basis that his application had been registered under the fast-track procedure, which had certain specific features distinguishing it from the asylum procedure under the regular procedure, particularly with regard to time-limits. The Court noted the automatic nature of the decision to fast-track applications, which was based on procedural grounds and was not linked to the circumstances of the case or to the terms or merits of the application. The Court acknowledged that fast-track asylum procedures, which were applied in many European countries, could make it easier to process applications that were clearly unreasonable or manifestly ill-founded. The re-examination of an asylum application under the fast-track procedure did not deprive applicants in detention of a detailed review of their claims, in so far as they had had a first application examined under the regular procedure. However, the present case concerned a first-time application rather than a re-examination. Hence, the consideration of the Applicant’s application by OFPRA under the fast-track procedure would have been the only examination of the merits of his asylum claim prior to his deportation, had his request to the Court for an interim measure not been granted in time. The Court noted that the registration of the Applicant’s asylum claim under the fast-track procedure had had significant repercussions in terms of the procedure applied, e.g. the time-limit for lodging the application had been reduced from 21 to 5 days, which was a very short period imposing particular constraints, as the Applicant was expected to submit, while he was in detention, a comprehensive application in French, meeting the same requirements as applications submitted under the regular procedure, by persons not in detention. During his asylum interview, the Applicant had been unable to provide the necessary information, which had been decisive for determining his application, leading to a rejection of his application, without providing him with an opportunity for clarification. The speedy processing of the Applicant’s claims by OFPRA should not have been given priority over the effectiveness of the essential procedural guarantees aimed at protecting him against arbitrary removal to Sudan. The sum of these constraints imposed on the Applicant throughout the procedure had undermined in practice his ability to assert his complaints under Art. 3 ECHR.

The application to the Administrative Court challenging the removal order, which had full suspensive effect, had theoretically made it possible to conduct an effective examination of the risks allegedly faced by the Applicant in Sudan. However, he was only provided with 48 hours to prepare his application, which was particularly short compared with the 2 months period granted under the regular procedure before the Administrative Courts. The Applicant had been able to submit his application only in the form of a letter written in Arabic, which an officially appointed lawyer, whom he had met briefly before the hearing, had read out without having the opportunity to add any evidence to it. This lack of conclusive evidence had formed the basis for the rejection of the application lodged by I.M., who had also been criticised for not having previously lodged an asylum claim; being in detention he had actually not been in a position to do so. Accordingly, the Court had serious doubts as to whether I.M. had been able to effectively assert his Art. 3 complaints before the administrative court.

The Court, therefore, concluded as to the effectiveness of domestic legal remedies available in theory that their accessibility in practice had been limited by a number of factors, relating mainly to the automatic registration of his application under the fast-track procedure, the short deadlines for submitting applications and the practical and procedural difficulty of producing evidence while in custody or detention. As to the standard of examination of applications by OFPRA and the Administrative Court, this was inadequate due to the conditions in which the applications had been prepared and the lack of legal and linguistic assistance provided to the Applicant. Moreover, the interview with OFPRA had been of short duration given the fact that the case had been complex and had concerned a first-time asylum claim. I.M was not provided access to any suspensive remedy before appeal courts or the Court of Cassation. The appeal to the National Asylum Tribunal against OFPRA’s rejection of an asylum application did not have suspensive effect when the fast-track procedure had been applied. The deportation of the Applicant had been prevented only by the application of Rule 39 of the Rules of Court. Hence, while the effectiveness of a remedy within the meaning of Art. 13 did not depend on the certainty of a favourable outcome for the Applicant, the Court could not but conclude that, without its intervention, the Applicant would have been deported to Sudan without his claims having been subjected to the closest possible scrutiny. Accordingly, the Applicant had not had an effective remedy in practice by which to assert his complaint under Art. 3 while his deportation to Sudan was in progress.

Outcome:

The fifth section of the ECtHR ruled that the allegation of violation of article 3 was inadmissible on the ground that on October 14th 2010 the court (CNDA) granted the Applicant refugee status (Art. 35(3)(a) ECHR).

The Court thus found a violation of Art. 13 taken together with Art. 3.

The judgment ordered the French Republic to pay €4,746.25 in legal fees to the Applicant.

Subsequent proceedings:

In October 2012, France submitted an action plan detailing the execution measures taken or planned.

On the individual level, the applicant was granted refugee status. On the general level, the plan envisages amendments to the code of administrative justice to ensure that a detained foreigner could effectively lodge an application for asylum and obtain from the court a temporary residence permit. In addition, the authorities are planning to send out a circular to the Prefects so as to apply the fast-track procedure to detained persons seeking asylum only when there are strong elements to believe that their application was lodged solely for the purpose of circumventing a removal order. 

Observations/comments:

Asylum Information Database, Country Report – France – Registration of asylum application.