France - Council of State, 23 December 2016, Association La Cimade et autres N°394819

Facts:

The applicants (l’association La Cimade, la Fédération nationale des associations d’accueil et de réinsertion sociale, l’association groupe accueil et solidarité, l’association Dom’Asile et le Groupe d’information et soutien des immigrés) ask the Council of State to annul the decree n°2015-1329 of 21 October 2015 for abuse of power. Indeed, the associations  argued that it conflicted with several articles of the Reception Conditions Directive 2013/33/EU.

They also ask the Council of State to compel the Prime Minister to fix a sufficient additional amount to the asylum seeker’s allowance for those who need to find a private accommodation.

Finally, they ask the State to be fined 3000€ under article L.761-1 of the Administrative Justice Code.

Decision & reasoning:

Concerning asylum seeking children :

First, the Council of state ruled that the exclusion, under article 1 of the controversial decree, of asylum seeking children from the benefits of the asylum seekers’ allowance, was not contrary to the objectives of the 2013/33/UE directive. Neither was it contrary to the Convention on the right of the child, article 3-1.

Indeed, measures under articles 375, L.221-1 and L.222-5 of the French Civil Code provide that the regional social assistance for childhood should take over matters of housing and provide for unaccompanied under age asylum seekers. This ground of the application is therefore rejected by the Council of State.

On the payment method for the asylum seekers’ allowance:

The Council of State has deemed that articles D. 744-17, D. 744-19 and D. 744-33 of the Entry and Stay of Foreigners and the Asylum Law Code, derived from article 1 of the challenged decree, are in compliance with the 2013/33/UE directive, contrary to what the applicants invoked.

Article D. 744-17 outlines that to benefit from the allowance, asylum seekers must be in possession of an asylum seeker certificate, which is delivered, under article L. 741-1 of the Entry and Stay of Foreigners and Asylum Law Code, once the application is registered. Articles D.744-19 and D.744-33 set that the asylum seekers’ allowance can be granted after verifying that the asylum applicant has accepted the material reception conditions, especially the accommodation offer, and after a control of his financial resources. According to the Council of State, these rules, derived from article 1 of the challenged decree, correspond to articles 17 paragraph 3 and article 7 paragraph 3 of the European directive. The directive sets that Member states can subordinate granting the material reception conditions to a verification that the seeker has accepted the accommodation offer and after checking his/her financial resources. This ground of the application is thus rejected by the Council of State.

On the transitional measures :

First, the applicants argued that the controversial decree should have provided transitional measures for the beneficiaries of the monthly subsistence allowance, set for asylum seekers before the allowance for asylum seekers was established by this decree. However, the Council of State considered that the rules set in the decree do not, having regards to their nature and scope, necessitate such measures.  Moreover, an administrative device was set so that the asylum centres could financially help those in need following the shift from the monthly subsistence allowance to the asylum seeker allowance. The Council of State thus, rejected this ground.

Secondly, the applicants set forth the ground that the article 3 of the challenged decree disregards the equality principle. Indeed, article 3 doesn’t allow the asylum seekers without an accommodation to benefit from the temporary wait allowance. The Council of State also rejected this ground because the decree does provide for a daily additional amount for those asylum seekers, whereas the temporary waiting allowance did not.

Concerning the limitation and withdrawal of the material reception conditions:

The Council of State deemed that the rules set in article L.744-8 of the Entry and Stay of Foreigners and Asylum Law Code are compatible with the 2013/33/EU directive. The article sets that the material reception conditions and especially, financial allowances, can be suspended, denied or withdrawn under certain circumstances. The Council stated that this article complies with article 20 of the European directive. Article 20 allows Member states to “reduce or, in exceptional and duly justified cases, withdraw material reception conditions”. This ground of the application is also rejected.

Concerning the amount of allowance for the asylum seeker:

Annex 7-1 of the Entry and Stay of Foreigners and Asylum Law Code, set by article 2 of the controversial decree, provides that an addition daily amount of 4.20€ should be granted to every adult asylum seeker whom, after accepting the offer of reception, were not offered an accommodation. 

The Council of State first considered that the article wasn’t contrary to article 17 paragraph 5 of the 2013/33/UE directive. Indeed, this article says that “Member States may grant less favourable treatment to applicants compared with nationals in this respect”. Thus, the rules set in annex 7-1 do not ignore the objectives of the directive simply because it provides an allowance amount to asylum seekers inferior to the Active Solidarity Income (Revenu de Solidarité Active).

However, the Council of State noted that under article 17 of the European directive, if a Member state cannot offer an accommodation to an asylum seeker, it must grant him/her an allowance of a sufficient amount in order to allow the asylum seeker to afford housing on the private market. Yet, the additional amount set by article 2 of the challenged decree in annex 7-1 is, according to the Council of State, manifestly not high enough to allow an asylum seeker to find accommodation on the private market

The applicants are thus entitled to ask the Council of State to annul the 21 October 2015 decree due to its article 2. 

Outcome:

Application granted because article 2 of the decree does not set a sufficient additional amount.

The Prime Minister has to take the appropriate regulatory measures within 2 months from the notification of this decision.

The state must pay 3000€ to the applicants under article L.761-1 of the Administrative Justice Code.

Subsequent proceedings:

The new additional amount has not yet been fixed by the Prime Minister.

http://www.la-croix.com/France/Immigration/Le-Conseil-dEtat-somme-gouvernement-daugmenter-aide-versee-demandeurs-dasile-2016-12-23-1200812618  

Observations/comments:

This case summary was completed by Laure Joly, a LLM student at Queen Mary's University.