France - Council of State, 14 January 2010, Ofpra vs. Mr. A., n°335380
Keywords:
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Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
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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:
No provision imposes a time limit on the determining authority within which a decision on asylum applications has to be taken. The only obligation, for which no sanction is foreseen, is to inform the applicant when a decision cannot be taken within a period of six months.
Facts:
Mr. A., a Sudanese national, applied for asylum to the French Office for the Protection of Refugees and Stateless Persons (Ofpra) on the 29 December 2006. Since he did not receive any express decision from the Ofpra, he complained to the administrative tribunal under summary proceedings. By an ordinance dating from 21 December 2009, the administrative tribunal directed the Ofpra to make a decision on his asylum application within two months and imposed a penalty of 50 euros. The Ofpra requested the Council of State to quash this ordinance.
Decision & reasoning:
The Council of State recalled that no provision of the Ceseda imposes a time limit on the Ofpra within which it has to take a decision on asylum applications. While one provision [Article R.723-2 Ceseda] states that when a decision cannot be taken within a six months delay the Ofpra informs the person concerned 15 days before the expiry of this delay, the ignorance of this duty to inform, for which no sanction is foreseen, does not constitute a serious and manifest illegality.
In the present case, the Council of State considered that the delay taken by the Ofpra before making a decision on the asylum application of the applicant, which is due to the particular difficulties linked to the investigation of this case, did not constitute a serious and manifest illegality, which could justify an injunction.
Outcome:
The ordinance of the administrative tribunal was quashed. The applicant’s request was rejected.
Observations/comments:
In a more recent decision (CE, 18 juillet 2011, M.A., n° 343901), the Council of State considered, by citing explicitly Article 10.1(d) of the Asylum Procedures Directive, that a two year delay exceeded the reasonable time by which applicants for asylum shall be given notice of the decision by the determining authority. The facts were however different and concerned an Iranian national under the mandate of UNHCR following Article 6B of its Statutes. The lack of decision by the Ofpra, which only needed to check whether this person was placed under the mandate of UNHCR, deprived him of the statutory rights he was entitled to as a refugee. In this case, the Council of State directed the Ofpra to take a decision on the asylum application within a one month delay and imposed a penalty of 100 euros.