France – Council of State, 31 July 2017, Nos 412125, 412171
| Country of Decision: | France |
| Court name: | France - Council of State, 6th Chamber |
| Date of decision: | 31-07-2017 |
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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Serious harm
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. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
Headnote:
It is within the powers of the interim relief judge to order urgent measures to stop serious and illegal harm to fundamental rights of migrants in Calais.
Facts:
The Applicants, Commune de Calais and the French Minister of the Interior, appealed to the Council of State to have the court order of 26 July 2017 of the injunction relief judge of Lille’s Administrative Tribunal quashed. The claims are joint as they relate to the same order. This order of 26 July 2017 required the competent authorities to put in place, within ten days, with penalties amounting to 100 euros per day of delay, appropriate access to water enabling the migrants to drink, wash themselves and their clothes, latrine, to provide access to showers and to organise departures towards reception facilities for asylum seekers across all of the French territory.
Decision & reasoning:
The Council of State examined the six pleas of the Applicants in turn:
· Provisional admission to legal aid: no need to consider this issue pursuant to article 8 of the law 91-647 of 10 July 1991 on Legal Aid.
· Legality of the Injunction: The French Minister of the Interior cannot declare that the injunction order was made disregarding the principle that both sides must be heard because it did not raise this plea in earlier litigation.
· Article L.521-2 of the French Code of Administrative Justice: Stressing the urgency of the particular situation, it is within the powers of the interim relief judge to order provisional measures to remedy the serious and illegal harm to fundamental rights of migrants in Calais, within forty-eight hours.
· Injunction to put in place access to water, latrine and showers: The living conditions of asylum-seekers in Calais amounts to inhuman and degrading treatment. The injunction relief Judge of Lille’s Administrative Tribunal was correct in his decision to take the necessary measures to eliminate the failure of authorities to put in place access to water.
· Injunction to organise departures towards reception facilities for asylum seekers across the French territory: the French Minister of Interior is wrong in declaring that this injunction is established on the right to emergency housing and gives rise to a breach of equal treatment.
Article L.761-1 of the French Code of Administrative Justice: M.O… and others will not pay the amount requested by the Applicants because they are not the losing party.
Outcome:
Appeals denied.
Subsequent proceedings:
ECtHR ongoing case: Khan v. France (no. 12267/16)
UK, 28 March 2017: The UK Upper Tribunal (Immigration and Asylum Chamber) rules against the Home Office’s attempt to stay the proceedings of two unaccompanied minors currently in Calais to reunite with the family members living in the UK. The fundamental rights of the claimants to access a court, particularly in view of their vulnerable situation as unaccompanied minors calls for an urgent judicial decision.
Observations/comments:
This case summary was written by Clara Gautrais, LPC student at BPP University.