France - Bordeaux Administrative Court of Appeal, 24 May 2012, No. 11BX02777, M.A.
Keywords:
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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. |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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Residence document
Description
“any authorisation issued by the authorities of a Member State authorising a third-country national to stay in its territory, including the documents substantiating the authorisation to remain in the territory under temporary protection arrangements or until the circumstances preventing a removal order from being carried out no longer apply, with the exception of visas and residence authorisations issued during the period required to determine the responsible Member State as established in this Regulation or during examination of an application for asylum or an application for a residence permit” |
Headnote:
Where there has been an incomplete transposition, precise and unconditional provisions of the Asylum Procedures Directive may be directly relied upon by foreigners present on French territory. This is, in particular, the case with the provisions of Article 10(1), which state that asylum seekers should be given timely information concerning the procedure which they must follow, and in a language which that they can be reasonably thought to understand. Under Article 34 of the same Directive, these provisions apply equally in the case of a subsequent application.
Facts:
The Applicant had made several asylum claims between 2003 and 2008 in several EU member states and several French départements. His latest asylum claim had been rejected by the Ofpra. Escorted back to Russia under humanitarian assisted return, the Applicant then returned to France and lodged a fresh asylum claim in September 2010. This claim, dealt with under the accelerated procedure, was rejected by the Ofpra. Following this rejection, on 15 November 2010, the Prefecture issued an order refusing him a residence permit, requiring him to leave the territory and determining his country of return. The Administrative Court in Bordeaux rejected his claim that the Prefecture had acted beyond its powers and that the order should be overturned. The Applicant appealed to the Administrative Court of Appeal against that decision.
Decision & reasoning:
The Administrative Court of Appeal (ACA) began by interpreting the combined effect of the provisions of Article 10(1), Article 32(3) and Article 34(1) of the Asylum Procedures Directive, ruling that it was equally incumbent on Member States to inform an asylum seeker of the procedure in the case of a fresh asylum claim.
Secondly, the ACA reiterated that any individual may, in support of an appeal against an unlawful administrative act, rely on precise and unconditional provisions of a directive, when the State has failed to take the transposing measures necessary within the set time-limits. The Court held that this was the case with Article 10(1) of the Asylum Procedures Directive.
Thirdly and finally, the ACA held that the Applicant had not had the benefit of this fundamental guarantee in the context of the investigation into his last asylum claim, rejection of which led to the order of 15 November 2010, nor on the occasion of a preceding claim. Refusing him residence had therefore occurred at the end of an irregular procedure.
Outcome:
Refusal of residence therefore had to be overturned, together with the requirement to leave the territory and the order determining the country of return.
Observations/comments:
A person who has lost their asylum claim can challenge the refusal of a residence permit, where the reason for this is a denial of refugee status, by relying on an irregularity in the procedure followed prior to the asylum claim being rejected.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| TFEU |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |
| France - CJA (Code of Administrative Justice) |
| France - Constitution |