France - Council of State, 6 April 2010, Mr. B. and Ms. B., n°338168
Keywords:
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Accelerated procedure
Description
Prioritisation or acceleration of any examination in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive, including where the application is likely to be well-founded or where the applicant has special needs or for any of the reasons in Article 23(4) of the Asylum Procedures Directive |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
Headnote:
The accelerated procedure (in this case, applicants from a safe country of origin) guarantees the individual assessment of the applicant’s situation and their right to a remedy with suspensive effect.
Facts:
The Prefecture refused to issue a temporary residence permit to the applicants, of Armenian nationality, because Armenia belonged to the list of safe countries of origin. The administrative tribunal confirmed the Prefecture’s decision. The applicants request the Council of State to quash the decision of the tribunal, to suspend the decision refusing the issuance of a temporary residence permit and to require that the Prefecture delivers them this permit under the asylum procedure.
Decision & reasoning:
The Council of State recalled that the corollary of the constitutional right of asylum, which constitutes a fundamental freedom, is the right to apply for refugee status. While this right entails that the foreigner who applies for refugee status is in principle allowed to remain on the territory until a decision is made about his/her asylum application, this right applies within the conditions provided under Article L.741-4 Ceseda [see commentary below], which enables the Prefecture to refuse a temporary residence permit in particular to the nationals of safe countries of origin.
The Council of State explained that the Prefecture refused to issue a temporary residence permit to the applicants because Armenia belonged to the list of safe countries of origin. In the framework of the accelerated procedure, the French Office for the Protection of Refugees and Stateless Persons (Ofpra) had to make a decision within 15 days, following an individual assessment of their situation. In these conditions, the Council of State considered that this procedure did not prevent the individual assessment of their situation in the framework of the asylum procedure provided under Article L-741-4 Ceseda.
Furthermore, the Council of State considered that asylum applicants who are nationals of safe countries of origin can, if they are subject to a removal order, benefit from a remedy with suspensive effect before the administrative tribunal before which the choice of the country of destination can in particular be challenged in light of the risks which the applicant would potentially face in this country. Therefore, the Council of State found that the applicants would not, due to the accelerated procedure, be deprived of a right to an effective remedy in violation of Article 3 of the European Convention on Human Rights or of the provisions of Article 30 of the Asylum Procedures Directive.
The Council of State added that the fact that violations of human rights in Armenia were reported in a Resolution of the Assembly of the Council of Europe and in a publication of Amnesty International did not prevent the examination of the asylum application by the Ofpra under the accelerated procedure.
The Council of State concluded that the Prefecture did not commit a manifestly illegal infringement of the right of asylum of the applicants by refusing to issue a temporary residence permit.
Outcome:
The applicants requests were rejected.
Observations/comments:
French provisions regarding the accelerated procedure (called “priority procedure” in French):
Article L.741-4 Ceseda stipulates that “Subject to the respect of the requirements of Article 33 of the 1951 Geneva Convention, the admission in France of an alien who applies for asylum can only be refused when:
[1°]
2° The alien who applies for asylum is a national of a country to which Article 1C5 of the 1951 Geneva Convention is applicable or of a country considered as a safe country of origin. A country is considered as such if it makes sure that the principles of freedom, democracy and the rule of law, as well as human rights and fundamental freedoms are fulfilled. The taking into account of the safe nature of the country of origin can not hinder the individual examination of each application;
[3° and 4°].
It is interesting to note that shortly after this decision, the Council of State found that Armenia should, together with three other countries, be removed from the French list of safe countries of origin, because of the violence against political opponents to the regime (see CE, 23 juillet 2010, Amnesty International section française et autres, n° 336034, 336232, also summarised in this database).
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.741-4-2 |