France - National Court of Asylum, 5 October 2016, Mme Y., N 14012645
Keywords:
| Keywords |
|
Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
|
Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
|
Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
|
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. |
|
Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
Asserting a violation of the procedural rules by the French Office for the Protection of Refugees and Stateless Persons (‘OFPRA’) when a child’s legal representative or any ad hoc administrator was absent from a hearing, the National Court of Asylum (‘CNDA’) annulled OFPRA’s decision and sent the case back to it to be decided again under the correct circumstances.
The CNDA sets out the limits to the principle of family unity in such as it is not applicable to the child of a refugee, the refugee having obtained that status only through application of the said principle following her marriage with a refugee not being the father of the child.
Facts:
Having fled the Comoros in November 2013, Mme Y, a minor, filed a claim through OFPRA in order to be granted refugee status or subsidiary protection:
· Through the effect of the application of the family unity principle, being the daughter of a statutory refugee, or
· Through her personal fear of being persecuted if she were to return to her country of origin following threats she received from Comorian individuals.
The OFRPA rejected her claim in a decision given on March 31st 2014, following an interview where the applicant was not assisted by her legal representative or by any ad hoc administrator.
Mme Y. then appealed to the CNDA on April 29th 2014, asking for the court to annul the decision of the general director of OFPRA based on the irregularity of the procedure, and for it to grant her asylum claim based on the grounds mentioned above.
Decision & reasoning:
The CNDA first reminded the parties of its competence to annul a decision taken by the general director of OFPRA when the said decision was taken without conducting an individual interview or where the office unlawfully chose not to conduct one as provided by the article L.733-5 of the Code on Entry and Residence of Foreigners and on Asylum (‘CESEDA’).
In this case, despite the OFPRA having granted the applicant the right to a hearing, the CNDA held that by misapplying the dispositions of article L.751-1 of CESEDA (as in force at the time of the decision), under which an underage asylum seeker must be assisted and represented by his legal representative –or at least by an ad hoc administrator– the office was guilty of a substantial procedural irregularity, such as to constitute an unlawful denial of the right to a hearing. Moreover, taking into consideration the importance and the scope of the fundamental right breached, the irregularity was such as to bring the CNDA to annul the OFPRA decision. The CNDA went further on and quoted the ‘primary consideration’ that must be attached to the ‘bests interests of the child’ when hearing claims from minors as set out in article 3 of the Convention on the Rights of the Child.
Moreover, the Court considered the question relating to the possibility of extending the principle of family unity to a minor child whose mother has only become a refugee following the application of the said principle when she married a statutory refugee not being the father of the child concerned.
If the Court first reaffirms the general principle of family unity as stemming from the Geneva Convention, it chose to set out its limits by excluding the described situation from the scope of the principle, justifying it as follows: not being the child of the statutory refugee through which, by marrying him, Mme Y.’s mother obtained the refugee status, the applicant is not entitled to benefit from the application of the principle as it shall not be destined to apply to any person dependent on a refugee.
Regarding the asylum claim based on the fears of persecution were the applicant to come back to the Comoros, the Court held that it was not presented with enough elements to make a decision and sent the case back to be decided by the office, mentioning that the fact of the applicant not being a minor anymore would have no consequence on the application for the grant of protection status.
Outcome:
Annulation of the OFPRA’s decision. Case sent back to it for the office to deal with the asylum claim.
Observations/comments:
The absence of an ad hoc administrator from an OFPRA hearing of an asylum claim submitted by a minor constitutes a grave enough procedural irregularity so as to justify the annulation of the decision of the director general of OFPRA.
By setting out the limits to the application of the principle of family unity as to exclude children in Mme Y’s situation, the decision of the CNDA seems to reinforce the precariousness of these families’ situation, putting them in a tenuous situation by promoting a difference of treatment between children from different marriages.
This case summary was written by Romain Tourenne, a LPC student at BPP University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law L 723-3 |