France - National Asylum Court, 4 May 2012, M.B., No. 11004519
Keywords:
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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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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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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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
Headnote:
Where national authorities responsible for examining asylum applications breach the duty of confidentiality, this can of itself create conditions exposing an asylum seeker to persecution within the meaning of the 1951 Refugee Convention.
Facts:
The Applicant, a Turk of Kurdish origin, claimed he feared persecution due to his involvement in the Kurdish cause. His first asylum application had been rejected by the Ofpra and the CNDA. In support of his application for a re-examination, the Applicant alleged new elements, in particular the existence of legal proceedings. He added that, in the context of enforcing an expulsion order, the Prefecture had sent to the Turkish Consulate a deposition in which he declared that he was wanted by the Turkish authorities because of assistance he had provided to the PKK.
Decision & reasoning:
In relation to the existence of new facts, the CNDA held that the sending by the Prefecture to the Turkish Consulate in France of a deposition made by the Applicant constituted an established fact subsequent to the CNDA’s previous decision and was capable of justifying the Applicant’s fear of persecution.
In relation to examining this fear, the CNDA underlined that the confidentiality of information regarding asylum seekers in France constitutes an essential guarantee of the right to asylum and a principle of the Constitution. The Court added that the obligation on the authorities of the country responsible for examining asylum claims to ensure that this guarantee is respected is set out in Article 22 of the Asylum Procedures Directive.
In this case, the CNDA held that the breach of the guarantee of confidentiality resulting from the French Prefecture’s actions was of itself sufficient, within the meaning of Article 1A2 of the 1951 Refugee Convention, to create conditions to expose the Applicant to persecution by the Turkish authorities in the event he returned to his country of origin, owing to his involvement in the Kurdish cause.
Outcome:
The Applicant’s refugee status was recognised.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |