France - Council of State, 5 June 2015, n° 376783
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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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:
The general director of The French Office for the Protection of Refugees and Stateless Persons (OFRA) appealed at the Council of State against the decision of the National Court of Asylum Law which granted M.A refugee status following the non-consideration by the court of the documents provided by the OFPRA in a foreign language (English).
The Council of State cancelled the court decision noting that it is incumbent on the Court to ask for a translation when necessary.
Facts:
The general director of The French Office for the Protection of Refugees and Stateless (OFRA) rejected, by a decision delivered in 14 November 2012, M.A’s application for asylum.
Following the refusal of his application, M.A appealed to the National Court of Asylum Law asking to cancel the decision issued by the OFPRA.
The National Court decided on 20 January 2014 to:
1- cancel the decision delivered by the OFPRA
2- grant M.A refugee status
Consequently, the general director of The French Office for the Protection of Refugees and Stateless Persons appealed against the court decision and asked the Council of State to:
3- cancel the decision of the court
4- refer the case back to the court
Decision & reasoning:
The Council of State recalls that the court shall make the necessary investigation about the facts of the case. Additionally, it is for the court to request, within its powers of instruction, the translation of documents submitted by the parties to the dispute when necessary.
In fact, M.A, considered as an Anglophone, had indicated during the interviews with the OFPRA that he was already aware of the documents.
Additionally, the parties of the current dispute could have become aware and could have discussed all the documents to which the OFPRA referred to in making its decision.
Consequently, the Council of State concludes that the court made an error of law through the rejection of the annexed documents presented and prepared by the OFPRA in the English language without providing a French translation.
Outcome:
The Council of State has cancelled the decision of the national Court and remitted the case back to the Court.
Observations/comments:
The question treated in this case has been invoked by other French courts when discussing the provision of French language documents by the parties to the case. In the case of society Sudan Airways vs. the Agency for Aerial Navigation Safety in Africa and Madagascar, the Court of Cassation in its decision delivered 12 November 2012 concluded that:
- The parties to the dispute could present to the court in a foreign language any documents which do not have a procedural character especially if the documents were initially prepared in a foreign language.
- There is no rule that requires the judge to reject the documents originally produced in a foreign language.
- The judge cannot reject the documents produced and prepared in a foreign language when both parties had acknowledged its contents and when none of the parties expressed difficulties in understanding the documents.
Similarly, in a decision delivered on 21 January 2013 by the Administrative Court of Appeal in Nantes, the administrative judge confirms that there is no procedural general rule which prohibits the consideration of a document produced in another language than French.
This case summary was written by Sahar Ammar, LLM student at the International University College of Turin.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law L 551-1 |
| France - Administrative Justice Code |
Other sources:
New York Protocol of 31 January 1967 relating to the Status of Refugees