France - Council of State, 5 May 2014, Mrs D vs the National Court of Asylum No.371201
| Country of Decision: | France |
| Court name: | Council of State |
| Date of decision: | 05-05-2014 |
| Citation: | Council of State, 5 May 2014, Mrs D vs the National Court of Asylum No.371201 |
Keywords:
| 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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Legal assistance / Legal representation / Legal aid
Description
Legal assistance: "practical help in bringing about desired outcomes within a legal framework. Assistance can take many forms, ranging from the preparation of paperwork, through to the conduct of negotiation and representation in courts and tribunals.” Legal aid: state funded assistance, for those on low incomes, to cover legal fees." |
Headnote:
After an initial refusal, for the re-examination of an asylum application to be admissible:
either, new facts must have arisen since the first decision; or, facts existed prior to the first decision but were rightfully unknown to the Applicant at the time of the first decision, and;
the aforementioned facts are capable of establishing grounds for a re-examination of the case.
Facts:
The Applicant sought to appeal the decision of the National Court of Asylum (the “CNDA”) dated 9 April 2013 which denied her appeal against the decision, by the General Manager of the French Office for the Protection of Refugees and Stateless Persons (the “OFPRA”) dated 30 May 2012, which had rejected her asylum application.
The Applicant also sought to have the State ordered to pay €3,000 to her lawyer, Mr Haas, in accordance with article L. 761-1 of the French Code of Administrative Justice and article 37 of the law of 10 July 1991 relating to legal aid subject to the condition that the Applicant’s lawyer would waive the collection of the portion corresponding to the State’s contribution.
Decision & reasoning:
Appeal against the decision of the CNDA
The Council of State (the “Council”) reasoned that the CNDA incorrectly applied the examination rules for asylum applications, when the CNDA considered that:
· the facts proffered by the Applicant were only consequences of previously examined facts which were not considered to provide sufficient grounds, and
· the judiciary of the Applicant’s country issued summons to the Applicant and the Applicant’s daughter died after the decisions were made regarding the Applicant’s asylum application.
Indeed, the Council explained that, after an initial refusal, for the re-examination of an asylum application to be admissible:
· either, new facts must have arisen since the first decision; or, facts existed prior to the first decision but were rightfully unknown to the Applicant at the time of the first decision, and
· the aforementioned facts are capable of establishing grounds for a re-examination of the case.
The Council, therefore, held that, because new facts had arisen since the CNDA’s decision which were capable of establishing grounds for re-examination, the Applicant had a legal basis to appeal against the CNDA’s decision of 9 April 2013, which had rejected the re-examination of the Applicant’s asylum application.
Legal Aid
The Council stated that the Applicant was eligible to receive legal aid and ordered the State to pay €1,000 to the Applicant’s lawyer, Mr Haas, in accordance with the second paragraph of article 37 of the law of 10 July 1991 relating to legal aid, subject to the condition that the Applicant’s lawyer waives the collection of the portion corresponding to the State’s contribution.
Outcome:
The Council found that the decision of the CNDA, dated 9 April 2013, was void and returned the case to the CNDA. The Council ordered the State to pay €1,000 to the Applicant’s lawyer, Mr Haas, in accordance with the second paragraph of article 37 of the law of 10 July 1991 related to legal aid, subject to the condition that the Applicant’s lawyer waives the collection of the portion corresponding to the State’s legal aid contribution.
Observations/comments:
This case summary was written by Linklaters LLP.