France - Council of State, 7 July 2010, Mr. A., n°315023
Keywords:
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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 time limit of 21 days to lodge a complete asylum application to the Ofpra [in the framework of the regular procedure] is sufficient.
Facts:
Mr. A., a national from Haiti, received a temporary residence permit from the prefecture on 15 February 2006 in order to enable him to lodge an asylum application to the French Office for the Protection of Refugees and Stateless Persons (Ofpra). By a decision dating from 20 March 2006, the Ofpra refused to register his claim, arguing that it was lodged on 17 March 2006 that is to say after the time limit of 21 days provided by law.
The administrative tribunal rejected the applicant’s request to quash the Ofpra decision. The administrative appeal court confirmed this judgment. The applicant requested the Council of State to quash the decision of the administrative appeal court.
Decision & reasoning:
The Council of State recalled the provisions of domestic law [Article L.742-1 of Ceseda, Article 1 of Decree n° 2004-814 from 14 August 2004] regarding the issuance of the temporary residence permit and the time limit of 21 days in order to lodge a complete asylum application to the Ofpra [in the framework of the regular procedure].
The Council of State stated that the importance of the swift resolution of asylum applicants justifies a time limit for lodging an asylum application to the Ofpra which is as short as possible, that is proportionate and respects the guarantees relating to the implementation of the right of asylum. In this regard, the Council of State considered that the time limit of 21 days provided by internal law must be considered as sufficient, whereas, in addition, the person concerned has the opportunity to argue before the administration, under judicial control, of the fact that he/she would face inhuman and degrading treatment upon return to his/her country of origin.
NB : The Council of State rejected the argument based on the application of Article 8.1 of the Asylum Procedures Directive , as the expiry date for the transposition of this directive into internal law (1 December 2007) was later than the Ofpra decision (20 March 2006).
Outcome:
The decision of the administrative appeal court was quashed. The Mr. A.’s request before the administrative appeal court was rejected.