France - Council of State, B.A. v Council of State, 8 November 2016, No. 393852
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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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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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
Headnote:
The French National Asylum Court (CNDA) must do a complete assessment of facts and circumstances in deciding whether an applicant should be granted refugee status, or failing that, subsidiary protection. In doing so, it must take into account all the documentation provided by the Applicant in support of the application. In this case, the Applicant’s medical evidence documentation and the evidence relating to the potential risks she is likely to face if she returns to her country (fear of persecution due to imputed political opinions) should have been taken into account.
The CNDA did not consider that evidence and did not include it in its decision.
Facts:
Mrs B.A., a Rwandan national, was refused asylum by a decision of the Director General of the French Office For The Protection of Refugees And Stateless People (OFPRA), after claiming a fear of persecution (if she returned to Rwanda) by the authorities on grounds of imputed political opinions (family history and possession of a leaflet from the opposition party).
In support of her application, the Applicant had provided a medical certificate as evidence of injuries faced in her country of origin, and had argued a well-founded fear of persecution due to imputed political opinions.
The French National Asylum Court (CNDA) upheld OFPRA’s decision on the grounds that the applicant had not established that she was personally at risk of persecution within the grounds established under the 1951 Geneva Convention or from one of the serious threats mentioned by article L. 712-1 of the administrative code of justice.
The Applicant appealed to the Council of State, requesting the annulment of the CNDA decision and for a sum of 3000 Euros to be borne by the state, under the provisions of article L. 761-1 of the administrative code of justice.
Decision & reasoning:
Procedures for qualifying for refugee status:
The Council recalled (in case 372864 mentioned below) that any person who is outside their country of origin due to a well-founded fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group, should be considered a refugee.
If a person exposed to serious threats does not meet the conditions to be granted refugee status, the Council recalled that he or she may, under certain conditions (and in particular if he/she is facing a material threat of death penalty, torture or inhumane or degrading treatment or punishment), benefit from subsidiary protection granted on the basis of the Right to Asylum Act of 10 December 2003.
The Council of State considered that the CNDA, when ruling on an application for refugee status or subsidiary protection, must take into account all factual circumstances known to the CNDA at the time of examining the application.
In order to assess the accuracy of the risks reported by an Applicant, the CNDA must consider all elements presented in support of the Applicant’s application. This includes where an Applicant produces “circumstantial evidence related to the alleged risks”.
In a previous decision by the Council of State (France: Council of State, M.A. v Council of State [2015], number 372864), the Council decided that the CNDA, after having considered the credibility of these elements, and having analysed these in light of the reported facts, must assess the risks these elements are likely to reveal. If the CNDA decides not to consider the evidence as credible the Council requires the CNDA to substantiate the reasons for its decision.
Error of law:
According to the Council of State,the French National Court of Asylum had not taken into account and assessed documents including circumstantial elements related to the alleged risks, such as the medical certificate (of the 8th December 2014), which specified that Mrs A. had “longitudinal scars on the outside of the right arm, that could be whip scars”. The Council considered that the CNDA should have taken into account the potential risks incurred by the Applicant which the medical certificate could potentially have revealed.
Moreover, the CNDA didn’t express an opinion on the reality of the alleged risks. In doing so, it tainted its decision with an error of law and insufficient motivation.
Outcome:
After the CNDA rejected the Applicant’s application, the Council allowed the appeal, and Mrs B.A. was found to be justified in asking for the annulment of the decision number 14035729 of the 4th May 2015 of the CNDA. The decision was annulled, and the case was sent back to the CNDA.
The sum of 3000 Euros is owed by the State to the applicant, under article L. 761-1 of the administrative code of justice.
Subsequent proceedings:
The case is sent back to the CNDA.
Observations/comments:
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Article L. 761-1 of the administrative code of justice (Cesda) |
| France - Article L. 712-1 and L. 712-2 of the code for entry |
| stay and asylum of foreigners |