France - Council of State, 13 February 2012, n° 356457
Keywords:
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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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." |
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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. |
Headnote:
An administrative authority seriously and manifestly illegally violated the right to asylum by refusing on principle to register an asylum application on the sole ground that the party concerned would not be accompanied by an interpreter for an additional interview. That situation constituted an emergency situation pursuant to article L. 521-2 of the French Code of Administrative Justice.
Facts:
The Minister of Interior brought a challenge before the Council of State against an order of the urgent applications judge of the Toulouse administrative court. According to the Minister of Interior, the urgent applications judge committed a mistake of law by holding that the refusal to register the Applicant’s application for admission to stay constituted an emergency situation. The Minister also challenged the order to the Prefect of Haute Garonne to inform the party concerned in writing of his rights and obligations in a language he could understand.
Decision & reasoning:
Firstly, the Council of State reiterated the terms of Article R. 741-2 of the Code on the Admission and Residence of Aliens and the Right of Asylum (Ceseda), according to which “an alien who has not already been given permission to residein France can request permission to remain for asylum pursuant to Article L. 741-1”, and referred to the documents which the party concerned must provide in support of his application.
Concerning the information to be provided on the Applicant’s entry into France and his travel itinerary, the Council of State reiterated that, if the prefecture is entitled to request further information, “it should not, for that purpose, require the asylum seeker to attend accompanied by an interpreter”.
Furthermore, the Council of State found that the direction the interested party had received from the prefecture service did not provide information about his rights and obligations which Article R. 741-2 stipulates should be given to him in a language he understands.
The Council of State also found that the letter sent to the asylum seeker on 19 December 2011 inviting him to contact an interpreter at his expense to assist him during the interview at the prefecture, failing which he would be considered to have a sufficient understanding of French, was not adequate to make up for the irregularity noted.
Finally, the CE held that, if the administrative authority was entitled to refuse an incomplete file, in this case it had seriously and manifestly unlawfully violated the right to asylum “by refusing a priori and in principle to register the asylum application on the sole ground that the party concerned was not accompanied by an interpreter”, without examining his file; therefore the urgent applications judge of the Administrative Court was right in law to find that this constituted an emergency situation.
Outcome:
The appeal by the Ministry of Interior, Overseas, Regional Authorities and Immigration was rejected.
Observations/comments:
This decision relates to the prefectural phase of the asylum application procedure in France, relating to admission to stay (see Overview).
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |
| France - CJA (Code of Administrative Justice) |