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France - Administrative Court of Strasbourg, M. D / French Ministry of Interior, n° 1603764, 6 July 2016
Country of Decision:
Country of Applicant:
Date of Decision:
06-07-2016
Citation:
Administrative Court of Strasbourg, M. D / French Ministry of Interior, n° 1603764, 6 July 2016
Court Name:
Administrative Court of Strasbourg
Keywords:
Relevant Legislative Provisions:
International Law
International Law > 1951 Refugee Convention
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms
Council of Europe Instruments
International Law > 1951 Refugee Convention
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms
Council of Europe Instruments
National / Other Legislative Provisions:
France - Articles L. 213-8-1
L. 213-9
L. 233-9
L. 723-6
R. 723-9 of the Code for the Entry and Residence of Foreigners in France and of Asylum Right
France - Article L. 761-1 of the Code of Administrative Justice
L. 213-9
L. 233-9
L. 723-6
R. 723-9 of the Code for the Entry and Residence of Foreigners in France and of Asylum Right
France - Article L. 761-1 of the Code of Administrative Justice
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Headnote:
An asylum seeker who was interviewed by telephone during his detention in the waiting zone by an officer of the French Office for the Protection of Refugees and Stateless Persons (OFPRA) in premises which were not subject to OFPRA’s director general’s prior approval has not benefited from the appropriate procedural guarantees attached to the examination of his application.
Consequently, the Ministry of Interior’s order rejecting Mr D’s request to enter the French territory, which was taken in light of an OFPRA opinion given in such circumstances, must be annulled.
Facts:
On 29 June 2016, Mr D, a citizen of Iran, entered France arriving from Turkey and indicated his wish to apply for asylum. On 30 June 2016, he was summoned for an interview with an OFPRA liaison officer, which was conducted on 1 July 2016 by telephone on the premises of the air and border police, with the assistance of a Persian interpreter.
Following the interview, OFPRA gave an opinion in which it considered Mr D’s application to be manifestly unfounded. On 1 July 2016, the Ministry of Interior gave an order in light of OFPRA’s opinion, rejecting Mr D’s asylum application.
Mr D then asked the Administrative Court of Strasbourg to:
- Annul the Ministry of Interior’s order;
- Order the administration to put an end to the waiting zone detention measures and to deliver him an asylum request certificate;
- Designate a lawyer to assist him as well as an interpreter; and
Order the State to pay the legal fees not included in the costs.
Decision & Reasoning:
- On annulation the Ministry of Interior’s order
(i) On the decision on the merits of the asylum application
Article L. 213-8-1 of the French Code for the Entry and Residence of Foreigners in France and of Asylum Right (“CESEDA”) establishes a procedure according to which the Minister in charge of immigration can only give its decision regarding an asylum application after consulting OFPRA. OFPRA issues an opinion expressing its views as to the merits of the application and, where relevant, identifies the potential ground/grounds for refusal.
In his application, Mr D contested the right of the Ministry of Interior to assess the merits of an asylum application.
In the present case the Court merely noted that the disputed order was delivered by the Ministry of Interior in light of OFPRA’s opinion.
(ii) On the procedural guarantees applicable to the asylum seeker’s interview by OFPRA
According to Article L. 213-8-1 of the CESEDA, OFPRA’s evaluation of the merits of an asylum application must comply with some procedural guarantees.
These guarantees can be found in Article L. 723-6 of the CESEDA, and they require that the asylum seeker be interviewed in person. In some circumstances, it is possible to carry out the interview by audio-visual means of communication instead.
Article R. 723-9 of the CESEDA specifies that the use of audio-visual means of communication is possible when the asylum seeker is detained, provided that the premises on which the interview is to be carried out are subject to OFPRA’s director general’s prior approval.
In this case, the Court considered that detention in a waiting zone characterises the relevant detention for the purposes of Article R. 723-9.
However, it noted that a telephone interview cannot be characterised as an interview through audio-visual means of communication and that in any case the premises within which the interview was carried out had not been preliminarily approved by OFPRA’s director general.
The Court consequently annulled the Ministry of Interior’s order refusing Mr D. the right to enter French territory on the basis of the asylum provisions.
- On ordering the administration to put an end to the waiting zone detention measures and to deliver Mr D an asylum request certificate
On the basis of Article L. 233-9 of the CESEDA, the Court considered that since its ruling annulled the disputed order, it necessarily implied that the administration had to put an end to the measures permitting the detention of Mr D in the waiting zone and that the administration had to deliver him an asylum request certificate. It ordered the administration to proceed to do it without delay.
- On ordering the State to pay the legal fees not comprised in the costs
The Court considered that the circumstances of the case did not justify that the State be ordered to pay the legal fees not comprised in the costs. It therefore rejected such request.
Outcome:
The order of the Ministry of Interior which rejected Mr D’s asylum application was annulled. The administration was to immediately put an end to the measures permitting the continued detention of Mr D in the waiting zone, and was to deliver him an asylum request certificate upon request.
Observations/Comments:
This case summary was done by Linklaters LLP.
