France - Council of State, 15 December 2010, Ofpra vs. Miss A., n°328420
| Country of Decision: | France |
| Country of applicant: | Congo (DRC) |
| Court name: | Council of State/Conseil d’Etat |
| Date of decision: | 15-12-2010 |
| Citation: | Conseil d’Etat, 15 décembre 2010, Ofpra c/ Mlle A., n° 328420 |
Keywords:
| Keywords |
|
Armed conflict
Description
A dispute involving the use of armed force between two or more parties. International Humanitarian law distinguishes between international and non-international armed conflicts.“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. |
|
Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
|
Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
Headnote:
Before granting subsidiary protection under Article L.712-1 c) Ceseda [which corresponds to Article 15 (c) of the Qualification Directive] to an applicant originating from the Congo, the Court had to inquire whether the situation of general insecurity which prevails in this country results from a situation of internal or international armed conflict.
Facts:
The applicant, a national from the Congo, had her asylum application rejected by the French Office for the Protection of Refugees and Stateless Persons (Ofpra). On appeal, the Cour Nationale du Droit d’Asil (National Asylum Court) (CNDA) granted her subsidiary protection. The Ofpra requested the Council of State to quash this decision.
Decision & reasoning:
First of all, the Council of State recalled the provision of the French legislation relating to subsidiary protection, in particular in a situation of general insecurity [Article L.712-1 c) Ceseda, see observations section below].
Then the Council of State recalled that in granting subsidiary protection to the applicant under this provision, the CNDA considered that the applicant faced in her country of origin, one of the serious threats provided for under this article.
The Council of State found that by refraining from inquiring whether the situation of general insecurity which prevailed at that time in the Congo resulted from a situation of internal or international armed conflict, the CNDA made a legal error and did not make a sufficiently reasoned decision.
The Council of State concluded that the request of the Ofpra to quash the decision of the CNDA was well-founded. The case was referred to the CNDA for a fresh decision.
Outcome:
The decision of the CNDA granting subsidiary protection was quashed. The case was referred to the CNDA.
Observations/comments:
Article 15 (c) of the Qualification Directive is transposed in French legislation by Article L.712-1c) Ceseda.
Article L.712.1 Ceseda reads [unofficial translation]:
“Subject to the provisions of Article L. 712.2 [exclusion], subsidiary protection is granted to any person who does not qualify for refugee status under the criteria defined in Article L. 711.1 and who establishes that she/he faces one of the following serious threats in her/his country:
a) death penalty;
b) torture or inhuman or degrading treatment or punishment;
c) serious, direct and individual threat to a civilian’s life or person by reason of generalised violence resulting from a situation of internal or international armed conflict”.
Under French legislation, the violence is not “indiscriminate” (as in the Qualification Directive) but “generalised”. Also, the threat should not only be “serious and individual” (as in the Qualification Directive) but also “direct”.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.712-1(c) |