France - Council of State, 6 February 2017, Mr. and Mrs. C., No. 392593
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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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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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. |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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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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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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Final decision
Description
A decision on whether the third-country national or stateless person be granted refugee status by virtue of the Qualification Directive and which is no longer subject to a remedy within the framework of the Asylum Procedures Directive Chapter V (concerning appeals procedures and the right to an effective remedy) irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned pending its outcome (subject to Annex III which is particular to Spain). |
Headnote:
Where the ECtHR has, under Article 39 of the ECHR, granted interim measures prohibiting the Government from deporting the Applicant, this does not impact the ability of national courts to rule on the Applicant’s claim to asylum. The interim measures are binding on national authorities only.
Facts:
The Applicants, Russian citizens of Chechen descent, entered France in 2010 and applied for asylum. In November 2011, their application was rejected by the French Office for the Protection of Refugees and Stateless Persons (‘OFPRA’), as confirmed by the National Court of Asylum (‘CNDA’). Their subsequent application was also rejected by the OFPRA in December 2012.
In May 2014, the Pyrénées-Orientales Prefecture informed the Applicants that they would have to leave France immediately and issued a compulsory residence order. In October 2014, the same Prefecture placed them in administrative detention. They appealed twice against both decisions but were unsuccessful.
The Applicants then made an application to the European Court of Human Rights (‘ECtHR’) for interim measures on the basis of Article 39 of the European Convention on Human Rights (‘ECHR’). The ECtHR requested that the French Government refrain from deporting the Applicants pending the outcome of their case.
Following this decision, the Prefecture released the Applicants from administrative detention and issued a second compulsory residence order.
The Applicants filed a second subsequent application before the OFPRA, which was rejected in October 2014. In April 2015, the CNDA ruled that they would not be able to appeal against the decision of the OFPRA.
The Applicants appealed against the decision of the CNDA. After the proceedings had been closed, they submitted a ‘note en délibéré’ containing the ECtHR decision. They contended that:
- The CNDA had tainted its decision with a contradictory statement of reasons and a distortion of the evidence in their files. The CNDA had acknowledged the decision by the ECtHR in allowing the Applicants’ subsequent application; however, it had rejected the application on the basis that no new evidence had been provided as to the risks of persecution. (N.B. on ‘notes en délibéré, see Article R. 731-3, Code of Administrative Justice (‘CJA’)).
The CNDA had breached Articles 6, 13 and 34 of the ECHR by failing to rule or to obtain a guarantee that the Applicants would not be issued with removal orders.
Decision & reasoning:
1. On refusing to reopen proceedings
The Council held that the CNDA had correctly followed the general rules concerning evidence provided after proceedings had been closed. It explained that a ‘note en délibéré’ need only be taken into account where it provides evidence of:
- Factual circumstances which the Applicant had previously been unable to disclose; or
- Legal circumstances which are material to the decision and must be taken into account.
In these circumstances, the Council held that the ‘note en délibéré’ did not provide evidence of either of the above, as the information had been fully discussed during the hearing before the CNDA in March 2015.
2. On breaching the ECHR
The Council held that the CNDA had not breached the ECHR. Firstly, it held that Article 6 ought to be disregarded as the CNDA was not concerned with determining the Applicants’ civil rights and obligations nor with any criminal charges against them.
Secondly, it held that Article 34 had not been breached. The interim measures had been granted to safeguard the right to the effective exercise of individual applications before the ECtHR. However, the interim measures did not impact the ability of national courts to rule on asylum applications. They were instead binding on the French Government alone.
Accordingly, where an Applicant had been definitively refused asylum, the interim measures would guarantee a right to remain in the national territory until the EctHR determined the merits of the case or put an end to the interim measures. Only at this point would the Prefecture be entitled to inform the Applicant of his obligation to leave under Article L. 511-1 of the Code of Entry and Residence of Foreigners and of the Right of Asylum (‘CESEDA’).
Finally, it held that Article 13 had not been breached because the correct procedure had been followed.
Outcome:
Appeal denied.
Observations/comments:
This case summary was written by Georgia Kandunias, GDL student at BPP University.