France - Council of State, 11 January 2012, No. 354907
Keywords:
| Keywords |
|
Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
|
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.” |
|
Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
|
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. |
|
Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
|
Material reception conditions
Description
“Reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.” |
Headnote:
French associations challenged an internal memo from the OFPRA (3 November 2011). The Council of State suspended the execution of that memo.
Facts:
French associations challenged an internal memo from the OFPRA (3 November 2011) stating that the asylum claims, of applicants without ID or traveling documents or who refused to give their fingerprints at the prefecture, should be refused and not assessed individually.
The OFPRA stated that this memo served the public interest by fighting against fraud.
Decision & reasoning:
Firstly, the Council of State ruled that the internal memo contained general binding provisions and thus can be challenged under article L.521-1 of the Administrative Justice Code (interim relief measure).
Secondly, the Council of State ruled that the internal memo should be suspended, for two reasons:
- the internal memo is designed to automatically reject asylums claims under the circumstances defined in the memo. The numerous applicants, who can fall within this situation, even though they can appeal to the National Court of Asylum, loose the right to stay on the territory (article L.742-6 CESEDA) and stop benefitting from the material reception conditions granted to asylum seekers. Thus, considering the consequences the note has on asylum seekers, even the general interest of fighting against fraud cannot justify the serious consequences that the note has on asylum seekers. Hence, the emergency condition under article L.521-1 od the Administrative Justice Code is satisfied.
- the procedure defined under the memo prevents the individual assessments of the asylum claims which are required even in the case of accelerated procedures (articles L.723-1 and L.723-2 CESEDA); and by preventing the interview of claimants breaches article L.723-3 CESEDA.
Finally, the Council of State held that the suspension of the internal memo necessarily implied that the OFPRA stopped applying the procedure defined in the memo and starts assessing those asylum claims.
Outcome:
The Council of State suspended the execution of the OFPRA internal memo (3 November 2011).
Observations/comments:
http://www.dalloz-actualite.fr/printpdf/essentiel/empreintes-alterees-conseil-d-etat-suspend-l-execution-d-une-note-de-l-ofpra
This case summary was completed by Marina Pinault, an LLM graduate of Leiden University.
Cited National Legislation:
| Cited National Legislation |
| France - Administrative Justice Code - Art. L.521-1 |
| France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law) Art L.742-6 |