France - CNDA, 26 September 2011, Mr. G., n°09007661
Keywords:
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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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. |
Headnote:
The involuntary return of an applicant, who did not intend to abandon his/her asylum application, to his/her country of origin results in the temporary interruption of the assessment of his/her case by the Court as the remedy does not temporarily have any ground.
Facts:
The first asylum application of the applicant was rejected by the French Office for the Protection of Refugees and Stateless Persons (Ofpra) and by the National Asylum Court (Cour nationale du droit d’asile, CNDA). He lodged a subsequent application which was rejected by the Ofpra. He challenged this decision before the CNDA.
The applicant argued that the Russian authorities were still actively looking for him because he took part in a demonstration which was organised in order to denounce violent acts committed against the Armenian community in Russia. He said that he recently learnt that he was summoned by the Russian police.
When summoned to the hearing at the CNDA, he did not appear because he had been expelled to his country of origin.
Decision & reasoning:
The CNDA considered that the provisions of Article 1A(2) of the 1951 Refugee Convention and of Article 2 of the Qualification Directive required that any asylum applicant requesting international protection was necessarily outside of his/her country of origin.
The Court considered that the involuntary return of an applicant, who did not intend to abandon his/her asylum application, to his/her country of origin lead to the temporary interruption of the assessment of his/her case by the Court since the remedy did not temporarily have any ground. In case of return to France, the person concerned would have to turn to the Court which would then make a decision on his/her case.
In the present case, the Court explained that, after the applicant challenged the negative decision of the Ofpra before the Court, he was expelled to his country of origin.
Outcome:
The CNDA directed a non suit.
Observations/comments:
This position is reflected in several CNDA decisions on cases where the applicant does not appear before the Court because he/she was expelled to his/her country of origin after he/she challenged the negative decision of the Ofpra on his/her application but before he/she was summoned by the Court (i.e. under the accelerated procedure where the remedy before the CNDA does not have a suspensive effect and where shorter time-limits are not imposed on the CNDA).
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |