France - Council of State, 11 November 2010, Ministry of Immigration vs. Mr. K., n°344286

Facts:

Mr. K., an Afghan national, was issued with a temporary residence permit in order to lodge an asylum application to the French Office for the Protection of Refugees and Stateless Persons (Ofpra). Since no room was available in a reception centre for asylum seekers, the applicant was referred to a reception platform. He benefitted from kits, vouchers and, as far as it was available, emergency accommodation as well as a temporary financial allowance. He complained to the administrative tribunal under summary proceedings. The administrative tribunal ordered the Prefecture to refer him to an accommodation within 48 hours of the notification of the ordinance. The Ministry of Immigration requested the Council of State to quash this ordinance.

Decision & reasoning:

The Council of State affirmed that the lack of measures provided by law in order to offer decent material reception conditions to asylum seekers until a decision has been taken on their asylum application can constitute a serious and manifestly illegal infringement of the right of asylum. The Council of State added that the assessment of the serious and manifestly illegal nature of such an infringement must take into account the means which are at the disposal of the relevant administrative authority. 

After recalling several provisions of the Reception Conditions Directive as well as relevant provisions of domestic legislation, the Council of State stated that the relevant authority had to ensure that reception conditions,  including housing, food and clothing, provided in kind, or as financial allowances or in vouchers, or in combination of these provisions, are available to the asylum applicant, as long as he/she is allowed to remain in the territory as such and whatever the examination procedure applied to him/her, according to his/her needs and resources. While, in particular when an initial assessment of the specific needs of the applicant is required or when housing capacities normally available are temporarily exhausted, the administrative authority may set modalities for material reception conditions different from those normally provided, this shall be for a reasonable period, as short as possible, and this shall cover the basic needs of the asylum applicant. The administrative authority shall, in particular, inquire whether housing capacities are available in other regions and, if necessary, provide reception modalities such as tents or other comparable facilities.

The Council of State considered that the judge, under summary proceedings, can give an order to the administration only in the case when, on the one hand, its behaviour shows a manifest ignorance of the requirements resulting from the right of asylum and when, on the other hand, this behaviour has serious consequences for the asylum applicant, taking into account in particular his/her health condition or his/her family situation.

The Council of State recalled that the payment of the temporary financial allowance cannot, given its amount, be considered as meeting all the requirements stemming from the obligation to ensure that decent reception conditions are available to asylum applicants, including as regards housing.  However, the Council of State considered that the present case did not show any serious and manifestly illegal infringement of the right of asylum, given all the measures taken by the administration considering the means at its disposal and given the particularities of the situation of the applicant, who is not accompanied by any child and who does not have any particular health concern.
 

Outcome:

The ordinance was quashed. The applicant’s claim was rejected.

Observations/comments:

The nature and the scope of the State’s duties in terms of accommodation of asylum seekers have led, on several occasions the administrative judge to hesitate between protecting the rights of the persons concerned and taking into account the effective possibilities of the administration in fulfilling them. At the beginning, the Council of State was firm in the assertion of the principles (see, for example, CE, réf., 17 septembre 2009, Ministère de l’immigration c/ S., n°331950). More recently the Council of State, under summary proceedings, seems to be less demanding regarding the application of these principles.

In the present decision, the Council of State considers that the State has a duty as regards the means, rather than a duty as regards the results contrary to what is apparently provided by the Reception Conditions Directive.

Source : Dictionnaire Permanent du Droit des Etrangers, Bulletin n° 196, January 2011.