France – Council of State, 3 October 2018, N° 406222
| Country of Decision: | France |
| Country of applicant: | Congo (Republic of) |
| Court name: | Council of State, 10th- 9th joint chambers |
| Date of decision: | 03-10-2018 |
| Citation: | (France) Council of State, 406222, 3 October 2018. |
Keywords:
| Keywords |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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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. |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that 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, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
The French National Court on Asylum has made an error of law by refusing to grant at the very least subsidiary protection to the applicant following his new request to re-examine his situation, despite a condemnation from the European Court of Human Rights (ECtHR) for the violation of Article 3 of the European Convention on Human Rights (ECHR).
Facts:
The applicant’s asylum claim was rejected by the French immigration authorities (OFPRA) in 2008, a rejection later confirmed by the French National Court on Asylum (CNDA) in 2010. The two requests to re-examine the applicant’s situation in 2010 and 2011 were also rejected. The applicant was then notified of a return order following the rejection of his request to be granted a residence permit in 2010. He appealed before the ECtHR, which ruled that the execution of the applicant’s transfer decision to the DRC would amount to a violation of Article 3 of the ECHR.
Nevertheless, his new request following this decision was similarly rejected by the French immigration authorities and subsequently by the CNDA. The latter decided that the risks mentioned in the DRC could not be regarded as established.
The applicant hence decided to appeal before the Council of State.
Decision & reasoning:
The Council of State first recalls that according to Articles 1, 41 and 46 of the ECHR, a Member State commits to comply with the Court’s final decisions. It implies that the Member State determines the means to take the appropriate measures aiming at repairing the consequences of the violation, pays the sums awarded by the Court by way of just satisfaction, and eliminates the source of the violation.
The Council of State also recalled Article 3 of the ECHR, as well as Article L. 712-1 of the code of entry and stay of foreigners and the right to asylum (CESEDA), providing for situations in which subsidiary protection is to be granted, including the risk of torture or inhuman or degrading treatment.
The Council observes that the decision from the ECtHR constituted new circumstances justifying a re-examination of the applicant’s situation by the French immigration authorities under the control of the CNDA.
The Council of State hence concluded that the latter made an error of law, as the full execution of the ECtHR’s decision requires not to proceed with the applicant’s transfer to the DRC but also to grant him, “at the very least”, subsidiary protection on the grounds of Article L. 712-1 mentioned above.
Outcome:
Appeal granted
The Council of State adds that the applicant’s lawyer is entitled to avail himself of articles L. 761-1 of the code of administrative justice and 37 of the law of 10 July 1991 related to judicial aid, as per granted to the applicant. It also adds that the French immigration authorities is required to pay the sum of 3000€, subject to renunciation.
Observations/comments:
« Re-examination of an asylum claim following a condemnation by the ECtHR », AJDA 2018. 2249, Council of State 3 Otober 2018, 19 November 2018 (available in French only, with access to Dalloz)
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - law no. 91-647 of 10 July 1991 - Art 37 |
| France - Article L. 712-1 and L. 712-2 of the code for entry |
| France - Code of Administrative Justice (Article L. 761-1) |