QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (on the application of AI)
|- and -
|The Secretary of State for the Home Department
David Manknell (instructed by The Treasury Solicitors) for the Defendant
Hearing dates: 13th and 14th November 2014
Crown Copyright ©
|I. Introduction, grounds and remedies sought||1-7|
|II. Background facts||8-10|
|III. The Procedure for claiming asylum in France and challenges to adverse decisions||11-44|
|IV. "Official Bulletin of the Ministry of the Interior" and letters from the UNHCR||45-50|
|V. The Dublin Regulation and the Reception, Qualification and Procedures Directives||51-56|
|VI. The EU Charter||57|
|VII. Ground 1: Discussion of the relevant legal issues|
|(a) Is there a presumption of compliance if the claimant relies upon EU Charter rights, as opposed to ECHR rights?||58-62|
|(b) The principles re the presumption||63-74|
|(c) Whether real risk, or arguably real risk, of refoulement to Sudan||75-83|
|(d) Whether the substantive asylum claim is relevant in rebutting the presumption||84-89|
|(e) Whether the possibility of a rule 39 application to the ECtHR should be ignored||90-107|
|(f) Autonomous interpretation: the Adan and Aitseguer issue||108-113|
|VIII. Ground 1: The generic and the individual questions||114-115|
|IX. Ground 1: Assessment of the generic question||116-151|
|X. Ground 1: Assessment of the individual question||152-168|
|XI. Assessment of Ground 2 (Duty to investigate)||169-174|
|ANNEX A: Extracts:|
|(i) Paras 3-5 of Part 2 of Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004||Extract(i)|
|(ii) EU Charter: Articles 4, 18, 19.2, 47 and 52.3||Extract (ii)|
|ANNEX B: Official Bulletin of the French Ministry of the Interior dated 5 December 2013.||B|
|ANNEX C: The claimant's statistics||C|
Ms. D. GILL:
I. Introduction, grounds and remedies sought
i) where the claimant's life and liberty will not be threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion;
ii) from which the claimant will not be sent to another State in contravention of his rights under the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (the "ECHR"); and
iii) from which the claimant will not be sent to another State otherwise than in accordance with the Geneva Convention relating to the Status of Refugees of 28 July 1951 as supplemented by the New York Protocol of 31 January 1967 (the "Refugee Convention").
Paras 3(2)-(5) are set out at Annex A, for convenience.
i) If removed to France, the claimant is at real risk (or arguably at real risk, depending on the correct test to be applied, see - below) of refoulement to Sudan where he will be exposed to persecution contrary to his right to asylum under Article 18 of the EU Charter or torture or inhuman or degrading treatment or punishment contrary to his rights under Articles 4 and 19.2 of the EU Charter. This is because:
a) If removed to France, he will be detained and have applied to him the "detained priority procedure" applicable in France. The manner in which his previous asylum claim was handled in France was unfair.
b) The examination of second and further asylum claims are known as "formal re-examinations" in France. If the claimant makes a new asylum claim after removal to France, his claim would not be re-examined in a manner which would remedy the previous unfairness.
c) Applicants applying for asylum for the first time in the detained priority procedure have 0.6% chance of success. The claimant will have nearly no chance at all of being granted asylum in a re-examination.
ii) In assessing whether the claimant is at real risk (or arguably at real risk, depending on the correct test to be applied) of refoulement to Sudan, at one remove, it is contended (in summary) as follows:
a) The irrebuttable presumption in para 3(2) of Part 2 of Schedule 3 of the 2004 Act must be disapplied in every Dublin removal case in which the claimant relies upon rights under the EU Charter.
b) The Court should assess the strength of the substantive asylum case. The stronger the likelihood that the claimant is a member of the Tunjur tribe, the lower the threshold at which procedural deficiencies in the French system will give rise to a real risk of refoulement.
c) The Court should disregard the possibility that, if his asylum claim is refused in France, the claimant may make an application to the European Court of Human Rights (ECtHR) under rule 39 of its Rules of Court for an interim protective order preventing his removal to Sudan until after it has considered his case on the merits. A rule 39 application "is no answer".
d) The Court should apply the principle in R v. Secretary of State for the Home Department ex parte Adan, R v. Secretary of State for the Home Department, ex parte Aitseguer  UKHL 67,  2 WLR 143 to the effect that there is only one true autonomous interpretation of the definition of a refugee under Article 1A(2) of the Refugee Convention.
In the instant case, it is said that the United Kingdom recognises as refugees all Sudanese nationals who are non-Arab Darfuris, whereas France only recognises as refugees Sudanese nationals who belong to a non-Arab Darfuri tribe if they have actually originated from Darfur and if there is no viable internal flight option (no expert evidence to this effect has been produced).
iii) There would be a breach of the claimant's right to an effective remedy (Article 47 of the EU Charter) taken together with his right not to be subjected to torture or inhuman or degrading treatment or punishment (Articles 4 and 19.2 of the EU Charter).
The defendant has unlawfully failed to investigate the fairness of the procedures in France. In reliance upon R v Secretary of State for the Home Department, ex parte Gashi  Imm AR 415 (per Buxton LJ), it is said that the duty of enquiry arises because the claimant has produced material that calls for an explanation, in that: (i) he has produced statistics which show that the success rate for asylum seekers in the detained priority procedure in France is 0.6% and even lower in the case of re-examinations, compared with 100% success rate in the United Kingdom in the case of Sudanese nationals of non-Arab Darfuri origin; and (ii) he has produced evidence which shows that the detained priority procedure in France is inherently unfair.
II. Background facts
i) On 9 February 2012, the claimant was encountered by French police in Calais and taken into custody.
ii) An expulsion order was issued by the Préfet of Pas-de-Calais on 10 February 2012 which the claimant challenged to the Administrative Court judge, whose decision was delivered on 21 March 2012 (see below). This appeal was suspensive because all appeals against expulsion orders are suspensive.
iii) On 15 February 2012, the claimant "expressed his wish to make an asylum application" by handing an application to the head of the detention centre where he was held.
iv) On 16 February 2012, he was refused provisional residence authorisation and his request for asylum recorded under the "priority procedure" by the Préfet of the Nord Department. As he was in detention, the timescales for those in the detained priority procedure (see below) applied. The claimant's appeal to the Administrative Court judge included an application for the suspension of this decision.
v) On 21 February 2012, the claimant lodged his asylum claim, it appears without legal assistance.
vi) On 28 February 2012, the claimant was interviewed about his asylum claim by Office Français de protection des Réfugiés et Apatrides ...the French Office for the Protection of Refugees and Stateless Persons, "OFPRA", see below).
vii) On 2 March 2012, the claimant's asylum claim was refused by OFPRA.
According to the statement of Ms. Emeline Lachal, the advocate who represented the claimant before the Administrative Court judge on 21 March 2012 (C166, -) and who said she inspected the claimant's file with OFPRA, a primary reason for OFPRA's refusal was the lack of documentation to verify the claimant's country of origin and ethnicity.
viii) On 14 March 2012, the claimant filed an appeal against the refusal of his asylum application by OFPRA to the Cour Nationale Du Droit d'Asile ("CNDA") which is an Administrative Court. [This appeal was non-suspensive because the claimant had been refused temporary residence as an asylum seeker.]
ix) On 15 March 2012, the claimant made an application by fax to the ECtHR for an indication under rule 39. This application was refused the next day without any reasons, although he was informed of the possibility of informing the Court that he wished to maintain his request.
x) On 21 March 2012, the Administrative Court judge delivered his decision on the claimant's challenges. According to the judgment at C208-211 and the statement of Ms. Lachal (C165, ), the claimant had challenged the following: (i) the decision of 16 February 2012 to refuse him temporary residence as an asylum seeker; (ii) the expulsion order of 10 February 2012; and (iii) the decision to place him within the priority procedure, as opposed to the "normal asylum procedure" (see below).
The claimant's challenges to these decisions were rejected. In summary, the judge said that it was apparent from the investigation that the claimant had entered France illegally, according to his declarations, at the end of December 2011; he was questioned on 9 February 2012 and did not state his intention of requesting asylum, giving a false identity, until 15 February 2012, after he had been informed of the expulsion order. In those circumstances, by refusing to admit the claimant as a temporary resident, the Préfet "did not seriously and obviously infringe the requirements imposed as to respect for the right to asylum". The judge rejected the claimant's assertion that his right to an effective remedy before a court was infringed simply because the appeal to the CNDA was not suspensive in nature, the judge having observed that the claimant would be able to appeal to the CNDA before which court he could present his arguments and be represented by a legal adviser.
Ms. Lachal said that she was introduced to the claimant two days before the hearing and that she first met him 30 minutes before the hearing (C165, ).
Ms Lachal said (C166, ) that the fact that the claimant had applied for asylum after the expulsion order was issued "ensured" that the Administrative Court judge deemed his asylum claim to be fraudulent. She said that the Administrative Court judge did not consider the prejudicial impact that these procedural shortcomings would have had upon the claimant's asylum application.
xi) On 23 March 2012, the claimant was released from detention. According to the statement of Ms. Cathy Vasseur of France Terre d'Asile (C202), he was released on the 43rd day of his detention because travel documents had not been obtained from the Sudanese Embassy (C202). Alternatively, he was released on the 45th day of his detention because he had reached the maximum period for such a detentions under French regulations (statement of Ms. Rosie Potter at C207). It appears that, the claimant had previously been taken to the Sudanese Embassy for travel documents to be obtained.
The claimant left France and claimed asylum in Birmingham.
xii) On 12 July 2012, the claimant's non-suspensive appeal was heard before the CNDA. The claimant was not present at the hearing but representations were made on his behalf by legal counsel. The judge rejected his appeal (a translation of the judgment appears at C212-C217).
The judge recorded the claimant's complaint that he had not been allowed sufficient time to develop his case at his interview with the protection officer of OFPRA; that the decision of OFPRA's managing director was not translated into Arabic, the only language he understands; and that he was not sent either the report that was produced during his interview with the protection officer or the analysis produced by that officer. The judge recorded the basis of the claimant's claim to fear persecution in Sudan.
The judge considered that the claimant's arguments that he had not had enough time during his interview with the OFPRA protection officer and that he had not been given the interview record and the decision of the protection officer in a language he could understand, were "inoperative" because it was the duty of the court to issue its own decision on the right of the claimant to asylum on the date of its own decision.
The judge went on to consider the basis of the claimant's application for asylum. He said that the claimant had not produced any documents capable of establishing his identity and his nationality; his explanations for being unable to contact any member of his family likely to send him any such documents "not having been at all convincing"; his declarations as to his origin and his nationality, which were all that the court had, were not sufficient in that "his words appeared vague about the region where he had allegedly lived for more than twenty years, he seemed ill-informed about the conflict affecting that region since 2003 and, in any event, his words did not reflect a daily and personal experience; the account of the persecutions listed [was] not helpful either in removing the doubts arising about his origin, his career and his nationality, nor [did] they support the facts alleged as having been established, their chronology not emerging clearly from his statements which [were] fluctuating on that point, the arrests and detentions referred to having been reported with few personal details, the reasons why he had been personally assimilated with the rebellion not appearing clearly and the circumstance derived from the fact that he could have remained in Darfur until 2009 whereas in 2003 he had allegedly evaded the monitoring obligations seeming rather unlikely; that because it had not been possible to determine his origin and itinerary, [the claimant] could not usefully invoke … subsidiary protection…; that meanwhile, the simple fact that [the claimant] allegedly belongs to the Tunjur tribe would not be sufficient, supposing it were established, to certify his alleged regional origin, large communities also being present these days in the territories of other Sudanese regions; so, in those circumstances, the court was not able to conclude on the merits of the fears expressed regarding the country of which [the claimant maintained he was] a citizen."
III. The procedure for claiming asylum in France and challenges to adverse decisions
i) English translations (prepared, on the instruction of the claimant's solicitors, by a firm registered in the United Kingdom) of the judgments of the ECtHR in I.M. v France (9152/09, 2 February 2012) and M.V. and M.T. v France (17897/09), 4 September 2014).
ii) Evidence from the claimant and individuals who worked with non-governmental organisations ("NGOs") in France and who had assisted the claimant at various stages during his previous stay in France. As I will have to deal with this evidence in assessing the risk of refoulement, it is convenient to list them here, as follows:
a) A witness statement dated 23 October 2012 from the claimant (C197-201);
b) A statement dated 18 July 2012 from Miss Rosie Potter, a volunteer with the Calais Migrant Solidarity (C206-207);
c) A statement dated 4 September 2012 from Ms Cathy Vasseur of France Terre d'Asile (C202-203).
d) An email dated 19 November 2012 from Ms. Nadia Sebtaoui of France Terre d'Asile (C196);
e) A statement dated 2 June 2014 from Ms. Emeline Lachal, an advocate lawyer in France within the region of Lille (C164-167);
f) A joint statement (the "joint statement") dated 4 June 2014 from Ms. Lucie Feutrier-Cook of l'Ordre de Malte and Mr. Radoslaw J Ficek of France Terre d'Asile (CC159-163); and
g) A second statement from Mr. Ficek dated 7 November 2014 (C227-C229).
iii) Translations of various French court and other official documents relating to the claimant's previous asylum claim.
iv) Two letters from the Office of the United Nations High Commissioner for Refugees (the "UNHCR"), the first is dated 13 May 2014 (C168-169) and the second is dated 18 September 2014 (C158).
(a) Terminology and acronyms:
|CESEDA||This is the Code on the entry and residence of foreigners and the right of asylum. CESEDA provides for the grant of international protection with reference to the terms of the Refugee Convention ().|
|OFPRA||Office Français de protection des Réfugiés et Apatrides, i.e. the French Office for the Protection of Refugees and Stateless Persons. OFPRA is the authority competent in France to acknowledge the status of refugee and grant subsidiary protection (Articles L. 713-1 and L. 721-2 of CESEDA) (). It is responsible for examining asylum applications. This duty is carried out by officers of protection (). (It is the equivalent of the U.K. Border Agency or U.K. Visas and Immigration in the United Kingdom).|
|CNDA||Any decision by OFPRA refusing an asylum application may be appealed to Cour Nationale Du Droit d'Asile. The CNDA is an Administrative Court under the authority of a President, a member of the Conseil d'Etat appointed by the Vice-President of the Conseil d'Etat (Article L. 731-1 of CESEDA). A petitioner may present explanations to the CNDA and be assisted by Counsel and an interpreter (Article L. 733-1 of CESEDA) ().
Whether an appeal to CNDA is suspensive or non-suspensive depends on whether the individual was granted temporary residence as an asylum seeker (as to which, see below).
|Conseil d'Etat||An adverse decision by CNDA may be appealed on points of law to the Conseil d'Etat. Appeals to the Conseil d'Etat are non-suspensive ().|
|APRF||French acronym for "order for return to the border". This is an expulsion order. No expulsion measure may be enforced against an individual until OFPRA has rejected his asylum claim (Article L. 742-6 of CESEDA) (). All expulsion orders may be appealed (see below). Appeals against expulsion orders are suspensive (see below) ().|
|Priority procedure:||The purpose of the priority procedure is to ensure examination on the merits of the asylum application and to obtain a rapid decision (Article L. 741-4 of CESEDA). The priority procedure is characterised by two features: (i) the asylum application is examined within tight deadlines; and (ii) a negative decision by OFPRA on the asylum application attracts a non-suspensive right of appeal to CNDA ().|
|Detained priority procedure:||Not all those who are in the priority procedure are detained. If an individual who is in the priority procedure is also in administrative detention, the timescale within which OFPRA must reach a decision is reduced from 15 days to 96 hours, as to which see my para  below. The maximum period of detention was 32 days at the relevant time in I.M. v France (). [It is now 45 days, according to Ms. Potter's statement]. (The detained priority procedure is the equivalent of the detained fast track procedure in the United Kingdom for the consideration of asylum applications).|
|Normal procedure:||This term is used to refer to the procedure applied for asylum claims made and examined outside the priority procedure (). [An individual whose claim is handled under the normal procedure may be detained, according to the statement of Ms Lachal, C165, at ].|
(b) Temporary residence permits: Admission to residency
i) Where examination of the asylum application indicates that another Member State is responsible for examining the application.
ii) Where the foreigner seeking asylum has the nationality of a country for which the provisions of Article 1(5)(C) of the Refugee Convention is invoked or a country considered as a safe country of origin.
iii) Where the presence of the foreigner in France constitutes a grave threat to the public order, public safety or the security of the state.
iv) The application for asylum is based on intentional fraud or constitutes an abusive appeal against the asylum procedures or is presented exclusively for the purpose of vitiating an imminent or pronounced expulsion order.
The judgment in I.M. v France states that, according to practice, an application is considered as based on intentional fraud or as an abusive appeal if, for example, the applicant lodges several asylum applications under different identities or makes an application when notified of expulsion measures or police investigations, even if he has been in France for some time ().
(c) The formalities for making an asylum application
i) The application must be prepared in the French language on a form provided by OFPRA ().
The applicant is not entitled to the free assistance of an interpreter to lodge the asylum application. He must bear the cost of any translation service he obtains (the administration makes an interpreter available to foreigners for non-admission or expulsion procedures only) ().
ii) The application form must be signed and accompanied by two recent identity photographs and, if applicable, the travel document and a copy of the residence permit document in force ().
iii) The OFPRA form is only complete if the applicant's fingerprints have been taken at the Prefecture ().
(d) Examination of asylum applications by OFPRA (normal procedure and priority procedure)
(e) Appeals to CNDA and appeals against decisions by CNDA
(f) APRF / Expulsion orders
(g) The normal procedure and the priority procedure: similarities and differences
i) Given that an OFPRA document is only complete if the applicant's fingerprints have been taken at the Prefecture, a detainee will need permission to attend the Prefecture. However, the grant of such permission depends upon the detainee's conduct and, above all, his ability to provide a legal address or finance the travel costs incurred (Article D 147 of the Code of Criminal Procedure) ().
ii) The fact that asylum applications must be made in the French language and that the State is not obliged to provide interpreters at State expense obviously poses a problem for asylum seekers who cannot write in French. The judgment in I.M. v France records (at ) that, in order to allow effective exercise of the rights of foreigners in administrative detention centres, the Minister with responsibility for asylum affairs has an agreement with one or more corporate entities with the mission of informing foreigners and assisting them to exercise their rights. Foreigners in detention benefit from services provided in each centre by such associations. Since 2010, the following five associations have been active in French administrative detention centres: Comité Inter Mouvementes Auprès des Evacués (CIMADE); l'Ordre de Malte; l'Association Service Social Familial Migrants (ASSFAM); France Terre d'Asile; and Forum des Réfugiés ().
i) In the normal procedure, the applicant has 21 days within which to lodge an asylum application with OFPRA (). (The time limit for OFPRA's examination of the asylum application is not apparent from the judgment in I.M. v France).
ii) The following time limits apply under the priority procedure:
a) The time limit for making an asylum application to OFPRA is five days from the date on which the individual is notified of his right to seek asylum and the conditions for exercising that right. (If the individual is in detention, the law provides for such notification to be given on the applicant's arrival in the administrative detention centre, in a language that the foreigner understands) (Articles L. 551-2 and L 551-3 of CESEDA) ().
b) OFPRA must make a decision on an asylum application within 96 hours if the asylum seeker is in detention and otherwise within fifteen days (Article R. 723-3 of CESEDA). However, the decision may be deferred if special investigations prove necessary ().
IV. "Official Bulletin of the Ministry of the Interior" and letters from the UNHCR
(a) Official Bulletin of the Ministry of the Interior
i) that several judgments of the ECtHR concerning France have criticised the fact that asylum applications made by persons in detention are automatically assigned to examined under the priority procedure, without being related to "the circumstances of the case and to the content of the application and its foundation".
ii) the decree of the CJEU of 30 May 2013 in Arslan (C534/11) confirming the need to avoid any kind of automaticity in the detention of foreign nationals awaiting expulsion who have presented applications for asylum after being placed in an administrative centre, whilst noting that EU law does not oppose them being held in detention "if it appears, after a study in each case and of all relevant circumstances, that the application was introduced for the sole purpose of delaying or compromising the enforcement of the return decision and that it is objectively necessary to maintain the measure of retention so as to prevent the interested person from avoiding his return".
iii) the prohibition of such automaticity under the 2013/33UE Directive of the European Parliament and Council of 26 June 2013, although the Directive permits detention pending deportation of a foreign national who makes an asylum application in detention where there are "reasonable grounds to believe that the applicant has presented the [asylum application] for the sole purpose of delaying or preventing the execution of the decision to return".
i) If OFPRA grants asylum, the person concerned should be released from detention immediately.
ii) If OFPRA refuses asylum, the person concerned may be expelled from France subject to the applicant's exercise of the suspensive right of appeal against an expulsion order.
iii) If OFPRA reports to the Préfet that the asylum application of the person concerned does not appear to be manifestly unfounded and that it therefore requires further consideration, the Préfet is invited to put an end to the detention and the person concerned "can then be provided with a safe conduct granting temporary immunity from arrest in order to go to the prefecture to carry out the formalities inherent to his a capacity as applicant. The request [for asylum] is then dealt with, according to its characteristics in normal procedure or priority procedure".
(b) Letters from UNHCR
V. The Dublin Regulation and the Reception, Qualification and Procedures Directives
VI. The EU Charter
VII. Ground 1: Discussion of the relevant legal issues
(a) Is there a presumption of compliance if the claimant relies upon EU Charter rights, as opposed to ECHR rights?
"41. It is entirely right, however, that a presumption that the first state will comply with its obligations should not extinguish the need to examine whether in fact those obligations will be fulfilled when evidence is presented that it is unlikely that they will be. There can be little doubt that the existence of a presumption is necessary to produce a workable system but it is the nature of a presumption that it can, in appropriate circumstances, be displaced. The debate must centre, therefore, on how the presumption should operate. Its essential purpose must be kept clearly in mind. It is to set the context for consideration of whether an individual applicant will be subject to violation of his fundamental rights if he is returned to the listed country. The presumption should not operate to stifle the presentation and consideration of evidence that this will be the consequence of enforced return. Nor should it be required that, in order to rebut it, it must be shown, as a first and indispensable requirement, that there is a systemic deficiency in the procedure and reception conditions provided for the asylum seeker.
68.… Although one starts with a significant evidential presumption that listed states will comply with their international obligations, a claim that such a risk is present is not to be halted in limine solely because it does not constitute a systemic or systematic breach of the rights of refugees or asylum seekers. Moreover, practical realities lie at the heart of the inquiry; evidence of what happens on the ground must be capable of rebutting the presumption if it shows sufficiently clearly that there is a real risk of article 3 ill-treatment if there is an enforced return."
(b) The principles re the presumption
"31.It is difficult to avoid the conclusion that, although the Supreme Court was purporting to apply and explain NS, it was to some extent departing from it. At the very least, EM (Eritrea) gives less weight than NS to the mutual confidence in Member States and the presumption of their compliance with EU law and fundamental rights…."
"83. At issue here is the raison d'être of the European Union … and, in particular, the Common European Asylum System, …
84. In addition, it would not be compatible with the aims of [the Dublin Regulation] were the slightest infringement of [the Reception Directive, the Qualification Directive and the Procedures Directive] to be sufficient to prevent the transfer of an asylum seeker to the member state primarily responsible….
85. If the mandatory consequence of any infringement of the individual provisions of [the Reception Directive, the Qualification Directive and the Procedures Directive] by the member state responsible were that the member state in which the asylum application was lodged is precluded from transferring the applicant to the first mentioned state, that would add to the criteria for determining the member state responsible set out in Chapter III of [the Dublin Regulation]…. Such a result would deprive those obligations of their substance and endanger the realisation of the objective of quickly designating the member state responsible for examining an asylum claim lodged in the European Union."
(c) Whether real risk, or arguably real risk, of refoulement to Sudan
"5.(1) This paragraph applies where the Secretary of State certifies that –
(a) it is proposed to remove a person to a State to which this Part applies, and
(b) in the Secretary of State's opinion the person is not a national or citizen of the State.
(2) The person may not bring an immigration appeal by virtue of section 92(2) or (3) of [the Nationality, Immigration and Asylum Act 2002 (the "NIAA")] (appeal from within United Kingdom: general).
(3) The person may not bring an immigration appeal by virtue of section 92(4)(a) of [the NIAA] (appeal from within United Kingdom: asylum or human rights) in reliance on –
(a) an asylum claim which asserts that to remove the person to a specified State to which this Part applies would breach the United Kingdom's obligations under the Refugee Convention, or
(b) a human rights claim in so far as it asserts that to remove the person to a specified State to which this Part applies would be unlawful under section 6 of the Human Rights Act 1998 because of the possibility of removal from that State to another State.
(4) The person may not bring an immigration appeal by virtue of section 92(4)(a) of [the NIAA] in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly founded.
(5) Sub-paragraph (4) applies to a human rights claim if, or in so far as, it asserts a matter other than that specified in sub-paragraph (3)(b)."
i) In his witness statement, the claimant alleged that he was ill-treated whilst in detention in France. He alleged that the police kicked him with their boots nearly every day (, C200). However, no challenge was brought to the certification on the ground that he is at real risk of being ill-treated in detention in France. In any event, an appeal to the FtT on the ground that the claimant is at real risk of ill-treatment in detention in France is bound to fail on any legitimate view, applying the test explained in ZT (Kosovo).
ii) The claimant did not advance any human rights claim based on any private or family life in the United Kingdom.
iii) The claimant's skeleton argument raised an argument that the claimant would be at real risk of arbitrary detention in France, i.e. that he would be at real risk of suffering a flagrant breach of his rights under Article 5 of the ECHR. However, this ground was dropped at the hearing.
iv) Article 13 of the ECHR is not included in the list of human rights set out at Schedule 1 of the 1998 Act. It is accepted on the claimant's behalf that Article 13 (of the ECHR) has not been incorporated into domestic law (claimant's skeleton argument, at [29(2)]). Accordingly, the claimant's allegation that his asylum claim will not be handled fairly in France and/or that he will not have an effective remedy if his asylum claim is again refused cannot amount to a human rights allegation. In any event, given that no challenge was brought to the certification on the ground that he is at real risk of being ill-treated in detention in France or that removal would be in breach of Article 8 of the ECHR and given that the Article 5 ECHR ground was dropped at the hearing, Article 13 of the ECHR cannot be the subject of a freestanding allegation to which the certification in para 5(4) can apply.
v) Allegations based on EU Charter rights cannot be the subject of any certification under para 5(4) because para 5(4) only applies to human rights claims, which is defined in Part 1 of Schedule 3 of the 2004 Act. This definition does not include EU Charter rights.
(d) Whether the substantive asylum claim is relevant in rebutting the presumption
"103. It is also clear from the M.S.S. judgment that the presumption that a State participating in the "Dublin" system will respect the fundamental rights laid down by the Convention is not irrebuttable. For its part, the Court of Justice of the European Union has ruled that the presumption that a Dublin State complies with its obligations under Article 4 of the Charter of Fundamental Rights of the European Union is rebutted in the event of "systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State" (see paragraph 33 above).
104. In the case of "Dublin" returns, the presumption that a Contracting State which is also the "receiving" country will comply with Article 3 of the Convention can therefore validly be rebutted where "substantial grounds have been shown for believing" that the person whose return is being ordered faces a "real risk" of being subjected to treatment contrary to that provision in the receiving country."
(e) Whether the possibility of a rule 39 application to the ECtHR should be ignored
"… there is nothing to suggest that those returned to Greece under the Dublin Regulation run the risk of onward removal to a third country where they will face ill-treatment contrary to art. 3 without being afforded a real opportunity, on the territory of Greece, of applying for a r.39 measure to prevent such."
"In so far as this Charter contains rights which correspond to rights guaranteed by [the ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. "
refers to the rights guaranteed by the ECHR and the rights guaranteed by the ECHR do not include rule 39.
"… the [ECtHR] also appears to have been of the opinion that there are limits to the extent to which one Member State of the European Union can be expected to police the asylum policy of another. The European Commission is responsible for enforcing the obligations of Member States under the Dublin Regulation to process asylum applications which are their responsibility and to give effect to the asylum directives. Other Member States are entitled to assume – not conclusively presume, but to start with the assumption – that other Member States will adhere to their treaty obligations. And this includes their obligations under the European Convention to apply article 3 and give effect to the rule 39 indications. There is no evidence that in respect of applicants returned under the regulation, Greece has not done so."
(e) Autonomous interpretation: the "Adan and Aitseguer" issue
VIII. Ground 1: The generic and the individual questions
i) The generic question is whether the evidential presumption that France will comply with its obligations under the Dublin Regulation and not remove the claimant to Sudan in breach of the right not to be subjected to torture or inhuman or degrading treatment or punishment is displaced.
ii) If the evidential presumption is not displaced, it is necessary to go on to consider whether there are individual risk factors (when considered against the backdrop of the evidential presumption), that show a real risk that France will remove the claimant to Sudan in breach of his right not to be subjected to torture or inhuman or degrading treatment or punishment, by applying the Soering test.
IX. Ground 1: Assessment of the generic question
The judgments in I.M. v France and M.V. and M.T. v France
i) The conditions for making asylum applications to OFPRA in the detained priority procedure were particularly constraining: asylum seekers had 5 days to lodge an asylum application in French and no translator was provided by the authorities. The deadlines allowed for OFPRA to reach a decision were short, notably for complex applications. The deadline was 96 hours for those detained. An appeal before CNDA does not even palliate the inadequacies of the procedures before OFPRA, since it has no suspensive effect and the applicant may be removed before the CNDA adjudicates ().
ii) Whilst an appeal against an expulsion order may appear effective in theory, it did not in practice guarantee a careful rigorous examination. This was what had happened in the instant case, since the CNDA acknowledged the petitioner's refugee status whereas the Administrative Court judge rejected his case. The time limit for appealing to the Administrative Court judge (48 hours) was short. Whilst in theory the applicant was entitled to an interpreter, it was difficult to obtain one in practice. Applicants are not always informed of the possibility of requesting an interpreter. As a result, they frequently do not benefit from the services of an interpreter, or the latter appears only during the hearing before the Administrative Court judge and not when the application to the judge is prepared. The 72-hour deadline for the Administrative Court to adjudicate was not adequate to allow as rigorous as possible an examination of the application.
i) A letter dated 3 August 2010 from the Human Rights Commissioner to the French Minister of Immigration, Integration, National Identity and Social Development which requested the French authorities to introduce a suspensive right of appeal to CNDA for those in the priority procedure. It stated that the 15-day period for OFPRA to decide an asylum application in the priority procedure reduced the possibility for a detailed study of the case by OFPRA or a second interview. The letter referred to the fact that CNDA plays a predominant role in awarding protection orders given OFPRA's low rate and that 68% of protection orders granted in 2008 were granted after a decision by CDNA().
ii) In its "Final Observations" of 31 July 208 on the fourth periodic report presented by France, the United Nations Human Rights Commission said that it was concerned by information that foreigners were returned to countries where they were in danger and that the Commission had also received information indicating that foreigners were frequently not correctly informed of their rights, especially the right to seek asylum, and they were frequently not guaranteed legal aid ([80)].
iii) In its "final observations" published on 20 May 2010 concerning France, the United Nations Committee against Torture (UNCAT) said that the committee remained concerned that 22% of asylum applications presented in 2009 were processed under the so-called priority procedure which did not provide for a suspensive appeal against any initial refusal by OFPRA. The committee recommended that France establish a suspensive appeal for asylum seekers placed in the priority procedure ().
iv) A report dated 10 December 2007 from the European Committee for the Prevention of Torture (CPT), following its visit to France from 27 September 2006 to 9 October 2006, which stated that, whilst applications for asylum could be made by persons in detention, the procedures to be followed were riddled with difficulties. In particular, detainees had a maximum of five days to make an application which had to be lodged in French. Any assistance by an interpreter was at the applicant's expense. The availability of paper and writing instruments in detention centres was frequently a lottery. Ultimately, the only chance of the detainee rests on the shoulders of CIMADE personnel who were constrained to select the cases they will support. The CPT recommended that the French authorities increase the period for filing an asylum application by detainees to a minimum of ten days ().
v) There was evidence from CIMADE that pens were prohibited in most centres. However, there was also evidence of a circular dated 14 June 2010 from the Minister of Immigration which resolved this difficulty, in that, it authorised the possession of pens inside detention centres ().
"The Court can only find that the automatic character of classification in the priority procedure of the petitioner's application was linked to procedural requirements and unrelated either to the circumstances of the case, or the content of the application and its basis."
i) The ECtHR in I.M. v France specifically acknowledged (at ) that French law offers two channels of challenge and that, pursuant to Vilvarajah et al v United Kingdom, at , the organisation of internal appeals falls within the remit of individual States.
ii) In I.M. v France, the French government said that no person may be removed from France unless an expulsion order has been issued and, if the expulsion order is appealed, the decision of the Administrative Court judge has been delivered. Neither the rejection of the application by OFPRA or by CNDA could result in expulsion (). If an appeal against an expulsion order is lodged, the Administrative Court judge must consider whether the decision would breach the individual's rights under Article 3 of the ECHR. He/she is not limited to considering the case on judicial review principles .
iii) The ECtHR in I.M. v France acknowledged that the appeal against the expulsion order was fully suspensive and stated that it came before a judge "whose competence to examine grievances under article 3 [of the ECHR] cannot be called into question". It said that "this appeal should, in theory, have allowed the [Administrative Court judge] to conduct an effective examination of the risks asserted by the petitioner, should he be returned to Sudan" ().
iv) Both I.M. v France and M.V. and M.T. v France referred to Sultani v France (No.45233/05) in which the ECtHR considered that the re-examination of an application for asylum under the priority procedure in a case where the first application had been considered under the normal procedure did not deprive the applicant in detention of an elaborate examination of his claim. The Court went on to say in M.V. and M.T. v France that the simple fact that an application for asylum is handled in the priority procedure and thus under a restricted deadline cannot subsequently, by itself, enable the ECtHR to conclude that the examination had been ineffective.
v) Besides the fact that the ECtHR concluded in M.V. and M.T. v France that there was no violation of Article 13 of the ECHR taken together with Article 3, the judgment in M.V. and M.T. v France mentions two other judgments at  in which the ECtHR had found no violation of Article 13 of the ECHR taken together with Article 3, having found that the petitioners had particularly delayed making their asylum applications and that they therefore had been able to gather beforehand evidence to support their asylum applications. These other judgments are M.E. v France (No.50094/10, 6 June 2013), where the petitioner had had three years to present his asylum claim, and K.K. v France (No.18913/11, 10 October 2013), where the petitioner had had two years.
Thus, the two judgments provided to me deal with or mention four cases; all concerned individuals whose claims were examined under the priority procedure in France which meant that they did not have a suspensive appeal to the CNDA. The ECtHR found a violation of Article 13 of the ECHR taken together with Article 3 in one of them. This means that the mere fact that an appeal to the CNDA is non-suspensive is not, of itself, sufficient to rebut the evidential presumption of compliance. It also means that any procedural and other problems that exist in France are not experienced on a scale wide enough to rebut the significant evidential presumption of compliance.
i) They all said that appeals to the CNDA are non-suspensive for asylum claimants in the priority procedure and that they may therefore be returned to their countries of origin once OFPRA has rejected their asylum application and even if they have appeals pending before the CNDA.
ii) In this regard, there is an important omission from their statements. They did not mention that removals cannot take place without an expulsion order and that, if the expulsion order is challenged, until the Administrative Court has made a decision on the challenge or that the judge hearing the challenge against the expulsion decision considers whether expulsion would be in breach of an individual's right not to be subjected to torture or inhuman or degrading treatment or punishment.
iii) It may be that the explanation for the omission lies in the terms in which they were requested to make their statements. For example, they may have been asked to give evidence about the priority procedure, which would explain why they have limited their comments to the priority procedure. Nevertheless, the omission is an important reason for reducing the weight I gave to their other evidence (for example, concerning what happens in practice or the statistical evidence or the claimant's situation if removed to France, discussed below).
i) The statistics reproduced at Annex B to this judgment. According to footnote 35 of the claimant's skeleton argument, these are from the 2012 annual report of an (unspecified) NGO and provided by Ms. Marion Guemas, Coordinatrice Juridique, France Terre d'Asile. According to the statement of Ms. Lachal (, C166), they are the statistics of the five NGOs listed at [42.ii] above.
ii) The claimant's skeleton argument ([20(7)]) gives statistics according to which the success rates for asylum applications decided under the normal procedure, in the CNDA and the priority procedure are, respectively, 12.8%, 14.5% and 4%, the source for which is said to be OFPRA's annual report for 2013, supplied by Ms. Guemas. The success rate of asylum applications under the detained priority procedure is said to be 0.6% the source for which is the document mentioned at i. above.
iii) The evidence of Ms. Lachal in her statement (at ) that there is a 99.5% chance of refusal of asylum claims by OFPRA in the detained priority procedure, from which it follows that her evidence is that the success rate is 0.5%.
iv) In the joint statement (at ) it is said that only 0.6% of these who claim asylum within the priority procedure in France are granted refugee status or subsidiary protection.
i) A full copy of the 2012 annual report has not been produced. As Sales J said in Elayathamby (), any set of statistics may be open to differing interpretations and explanations for the patterns they show. In addition, the total of 73 under the column for the year 2012 does not tally with the figure of 1,140 given as the total number of cases.
ii) Evidence from local NGOs carries less than weight than statistical evidence from reports from bodies such as the UNHCR, CPT etc. I respectfully agree with the reasoning of Sales J in Elayathamby () to the effect that local organisations do not have the resources nor the general perspective on acceptable standards of protection for asylum seekers which international bodies such as UNHCR, UNCAT, CPPT etc have.
iii) A low acceptance rate does not of itself mean that there are significant procedural problems leading to a real risk of refoulement. For example, in his judgment in Elayathamby, Sales J drew attention to the fact that the UNHCR did not then take issue with the "extremely low recognition rate" for Cyprus because the huge majority of cases were simply not refugees, whereas it raised concerns about the low recognition rate in Greece (-).
iv) In any event, the fact is that a success rate of 0.5% or 0.6% is significantly better than the statistics for Greece at the time M.S.S. was decided. According to  of M.S.S, in 2008, the acceptance rate in Greece at first instance was 0.04% for refugee status (11 people) and 0.06% for humanitarian or subsidiary protection (18 people) (Source: UNHCR, Observation on Greece as a country of asylum, 2009).
i) The mere fact that the Bulletin is not couched in words which suggest it was intended to impose a binding obligation to follow it does not mean that it is not being followed in practice. There may well be good reasons why the Bulletin was not couched in language which attempts to impose a binding obligation, bearing in mind the addressees.
ii) Whilst the joint statement and Ms. Lachal's statement pre-date the decision of the French Council of State of 30 July 2014 referred to in the letter dated 18 September 2014 from the UNHCR, Mr. Ficek did not mention it in his second statement dated 7 November 2014. This may or may not be because he was unaware of the decision. There may be other good reasons for the omission. Nevertheless, the omission reduced the weight I gave to his evidence.
iii) Even taking at face value Mr. Ficek's evidence that OFPRA continues to deem applications made in detention centres as fraudulent, it does not follow that OFPRA's view that the application is fraudulent leads to the individual concerned being assigned to the priority procedure contrary to the terms of the Bulletin, as opposed to it being a reason to disbelieve the basis of the asylum claim.
iv) In any event, Mr. Ficek did not mention what happens in practice if the individual concerned challenges the decision to place him in the priority procedure contrary to the terms of the Bulletin and the decision of the French Council of State before the Administrative Court. It is clear from Ms Lachal's statement that a decision to place a person in the priority procedure can be challenged to the Administrative Court (see  above).
X. Ground 1: Assessment of the individual question
i) All of the arguments advanced by Mr Husain (save in relation to the fact that he was not given a copy of his interview notes or a copy of OFPRA's decision) are in fact directed at the detained priority procedure itself and yet it is accepted on the claimant's behalf that examination of an asylum application under the detained priority procedure is not in itself enough to show that the process for examining a claim in the priority procedure will be so defective as to lead to a real risk of refoulement.
ii) The fact that claimant was not given a copy of his interview notes or a copy of OFPRA's decision is an aberration because Article R. 723-1-1 of CESEDA provides that OFPRA must provide a copy of its report and its decision to "interested parties". Aberrations are not enough.
iii) The petitioner in I.M. v France was arrested on the day of his arrival in France, whereas the claimant was encountered by the police on 9 February 2012, over a month after his arrival at the end of December 2011. Mr Husain submitted that, as the claimant had been living in a derelict building that was due for demolition (as per the statement of Ms. Potter), it had not been shown that he had had an opportunity to obtain documentary evidence to establish his claim. However, it is not for the defendant to show that the claimant had had an opportunity to obtain documentary evidence. This is an argument that the claimant ought to have raised in challenging the decision of OFPRA and the expulsion order and in his rule 39 application to the ECtHR.
iv) The ECtHR accepted the evidence of the petitioner in I.M. v France that he had expressed his wish to claim asylum from the day of his arrival in France, whereas the claimant "first expressed his wish to claim asylum" on 15 February 2012, i.e. at least six weeks after he arrived in France at the end of December 2011 (this being his own declaration according to the judgment of the Administrative Court judge, C209), six days after he was encountered by the police on 9 February 2012, and five days after the expulsion order was issued against him on 10 February 2012.
v) The petitioner in I.M. v France was at risk of removal even before his asylum application was recorded by the French authorities. In contrast, in the instant case, the claimant's suspensive appeal against the expulsion order protected him from removal through the period which covered the making of his asylum application, his interview with OFPRA and the refusal of his asylum claim by OFPRA right up until 21 March 2012, the date of his hearing before the Administrative Court judge. At the date of his release from detention by the French authorities, his only suspensive appeal had been rejected. Notwithstanding this fact, the French authorities released him because the maximum period of his detention had been reached and (it would seem) a flight to Sudan could not be arranged in time. He could have attended his hearing before CNDA but chose not to do so. He chose to leave France and travel to Birmingham where he claimed asylum. He was at large in France and had not been given a ticket to travel to Sudan.
vi) Mr Husain drew attention to the brevity of the reasoning of the judgments of the Administrative Court judge and the CNDA in the claimant's case. However, the ECtHR did not find a breach of Article 13 of the ECHR taken together with Article 3 in M.V. and M.T. v France, notwithstanding that it found that the removal of the petitioners to Russia would be in breach of Article 3 of the ECHR and that insufficient reasons had been given for rejecting the petitioners two requests for re-examination of the decision on their asylum claims. Indeed, it is interesting to note what the ECtHR said on the issue of sufficiency of reasoning. It said ():
a) OFPRA had rejected the initial asylum claim "simply because [the petitioners'] statements were not detailed".
b) CNDA did the same because it considered that neither the documents nor the statements of the petitioners "allowed to take as established the facts reported and the occasional aid to an uncle could not justify the alleged fears".
c) "At the first request for a review, the instances of asylum confined themselves to stating that the allegations were not established" and that the "police summons produced [did] not set out the reasons behind their enactment". This means that these were the sole reasons given by OFPRA for rejecting the first request for a review.
d) In relation to the second request for a review, OFPRA said that the additional documents were not admissible. In turn, the Administrative courts restricted themselves "to referring to the decisions of the bodies of asylum to avoid the possibility alleged by the petitioners upon return". This means that the second request for a review was refused by OFPRA on the sole ground that the additional documents were not admissible and the Administrative Court referred to OFPRA's decisions to reject the petitioners' claims that they were at risk on return.
I have to say that, in the claimant's case, the judgment of the CNDA at least simply cannot be compared to the above. The reasons given by the judge in the claimant's case were detailed, in comparison to M.V. and M.T. v France (see summary at [9.xii] above). Yet the brevity of the reasoning in M.V. and M.T. v France did not lead to a finding of a breach of Article 13 taken together with Article 3.
i) All of them said that the claimant will be detained upon arrival as a returnee under the Dublin Convention because this is common practice.
ii) All of them said that, if the claimant returns to France and makes an asylum claim, this will be known as a "formal re-examination".
iii) All of them said that he will be re-allocated to the priority procedure. Mr. Ficek said in his second statement that OFPRA continues to deem applications made in detention centres as fraudulent and that this practice has continued since the judgment in I.M. v France.
iv) Ms. Lachal said that there will be a higher than 95% chance of the claimant's further asylum claim being refused by OFPRA. Mr. Ficek said in his second statement that the chances of the claimant being granted asylum were still extremely low, even with the report of Mr. Verney. Ms Feutrier-Cook and Mr Ficek said in their joint statement that the claimant stands no chance at all of being granted asylum as a result of a re-examination and that re-examined asylum applications are routinely and rapidly refused by OFPRA, especially in instances where the applicant is still unable to provide some form of official documentation relating to his or her identity, from their country of origin.
v) Ms Feutrier-Cook and Mr Ficek go on to say in their joint statement that the claimant would not be granted asylum were he to return to France solely with an expert report as evidence of his country of origin and ethnicity.
vi) Commenting on how the French authorities would be likely to treat the report of Mr Verney, Mr Ficek said in his second statement that OFPRA does not publish any policy relevant to determining an applicant's ethnic identity. However, he said that, based on his experience of assisting asylum seekers to make asylum claims, the chances of the claimant being granted asylum are still extremely low for two reasons. First, that OFPRA and the appeal courts in practice will only accept evidence of identity including ethnic identity which originates from the country of origin. Without such evidence, he could not see that the claim for re-examination of the claimant's asylum claim insofar as it was based on his claim to be Tunjur would stand any additional prospect of success. Secondly, even if the claimant established that he is Tunjur, this would probably not be sufficient by itself to satisfy OFPRA and the appeal courts that he requires international protection. They would, in addition, need to be satisfied that he lived in the Darfur region and could not relocate elsewhere in Sudan.
vii) All of them said that the claimant would not have a suspensive right of appeal against the refusal by OFPRA. Ms Feutrier-Cook and Mr Ficek said in their joint statement that there is a very high likelihood of the claimant being returned to Sudan at this stage.
i) All of the statements read as if the claimant is entitled to a guarantee that he will be granted protection in France. There can be no guarantees.
ii) If it is the case that OFPRA and the French courts will only accept documentary evidence from the country of nationality as sufficient to establish ethnic origin and place of origin and/or they consider the possibility of relocation even if they accept that an individual belongs to a non-Arab Darfuri tribe, these matters should be established by expert evidence. No such expert evidence has been produced. The procedure in Part 35 of the CPR has not been followed. This reduces the weight that I am prepared to give to it, although I make it clear that I do not disregard the evidence. In any event, I have rejected the argument based on Adan and Aitseguer.
XI. Assessment of Ground 2 (Duty to investigate):
The claim is therefore dismissed.
Paragraphs 3, 4 and 5 of Part 2 of Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (the 2004 Act):
"3.(1) This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made an asylum claim or a human rights claim may be removed –
(a) from the United Kingdom, and
(b) to a State of which he is not a national or citizen.
(2) A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place –
(a) where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion,
(b) from which a person will not be sent to another State in contravention of his Convention rights, and
(c) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention.
4. Section 77 of the Nationality, Immigration and Asylum Act 2002 (c41) (no removal while claim for asylum pending) shall not prevent a person who has made a claim for asylum from being removed –
(a) from the United Kingdom, and
(b) to a State to which this Part applies;
provided that the Secretary of State certifies that in his opinion the person is not a national or citizen of the State.
5.(1) This paragraph applies where the Secretary of State certifies that –
(a) it is proposed to remove a person to a State to which this Part applies, and
(b) in the Secretary of State's opinion the person is not a national or citizen of the State.
(2) The person may not bring an immigration appeal by virtue of section 92(2) or (3) of that Act (appeal from within United Kingdom: general).
(3) The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act (appeal from within United Kingdom: asylum or human rights) in reliance on –
(a) an asylum claim which asserts that to remove the person to a specified state to which this Part applies would breach the United Kingdom's obligations under the Refugee Convention, or
(b) a human rights claim in so far as it asserts that to remove the person to a specified State to which this Part applies would be unlawful under section 6 of the Human Rights Act 1998 because of the possibility of removal from that State to another State.
(4) The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly founded.
(5) Sub-paragraph (4) applies to a human rights claim if, or in so far as, it asserts a matter other than that specified in sub-paragraph (3)(b)."
Article 4: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
Article 18: "The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as 'the Treaties')."
Article 19.2: "No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment".
Article 47: "Everyone whose rights and freedom guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice."
Article 52.3: "In so far as this Charter contains rights which correspond to rights guaranteed by [the ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection."
Ministry of the Interior
of foreigners in France
Department of right to asylum
and to protection
Information note of 5th December 2013 relating to asylum applications presented by aliens in administrative detention in view of their expulsion. Follow up actions of the ECHR and CJEU.
Summary: In order to take into account case law of the European Court of Human Rights and the Court of Justice of the European Union on asylum applications in detention, prefects are invited, when OFPRA indicates that a request doesn't seem manifestly unfounded, to put an end to the detention and allow the alien to go to the prefecture in order to carry out the formalities inherent to his capacity as claimant.
In connection with several judgments concerning France (ECHR 20 September 2007, Sultani v. France No.45223/05, February 2, 2012, IM v France, No.9152/09; 6 June 2013, ME v France No.50094/10), the European Court of Human Rights has considered the compatibility of the procedure for examining an asylum application of a foreign national placed in administrative retention in view of his expulsion (art.L.551-3, R.553-15 to R.553-17, R.723-1 and R.723-2 of the Code on the entry and stay of aliens and the right to asylum) with the obligations arising from the European Convention for the Protection of Human Rights and Fundamental Freedoms: article 13 (right to an effective remedy) combined with article 3 (prohibition of inhuman or degrading treatment).
In those cases, the Court has not questioned the legitimacy and the interest of the existence of a specific procedure for asylum applications in retention, but has essentially sentenced against the "automatic" character of the implementation of the accelerated procedure for the examination of an asylum application presented in retention "unrelated to the circumstances of the case, and to the content of the application and its foundation".
In addition, in a decree of May 30th 2013, Arslan, C-534-11, the Court of Justice of the European Union (CJEU) has confirmed the need to avoid any kind of automatism in the retention of a foreign national awaiting expulsion, who has presented, after his placement in an administrative retention center an application for asylum. In particular, the CJEU ruled that the law of the European Union does not oppose to the interested person to be held in retention "if it appears, after a study in each case and of all relevant circumstances, that the application was introduced for the sole purpose of delaying or compromising the enforcement of the return decision and that it is objectively necessary to maintain the measure of retention so as to prevent the interested person from avoiding his return".
Finally the 2013/33/UE Directive of the European Parliament and Council of 26 June 2013 defining standards for the reception of applicants for international protection (recast) provides new and specific provisions on detention of asylum seekers (article 8 to 11) that prohibit this automaticity, while allowing the keeping in detention of a foreign national pending deportation, who presented after his detention, an asylum application when there are "reasonable grounds to believe that the applicant has presented the application for international protection for the sole purpose of delaying or preventing the execution of the decision to return".
A bill will soon be submitted to Parliament in order to ensure conformity of the French law to these jurisprudential solutions and to implement this directive.
Pending the implementation of this new system, it is recommended to comply with this case law and to stop the automatic nature of the examination of an asylum application presented in detention under the accelerated procedure above mentioned.
Therefore I invite you, concerning asylum applications presented in detention by persons subject to an obligation to leave French territory, to now proceed according to the following transitional measures adopted in accordance with the Director General of 'French Office for the Protection of Refugees and Stateless Persons' (OFPRA).
15th January 2014 – Interior 2014-1 Page 1
First, the head of the detention center, or, where appropriate, the head of the detention area (article R.553-15 of CESEDA) must systematically and immediately inform the prefect who decided on the placement in detention, of the submission of an asylum application in the manner provided in the second paragraph of Article R.723-1 of CESEDA.
Secondly, it is recalled that, in accordance with Article L.551-3 of the CESEDA, this application may not be made after the expiry of a period of 5 days following the notification of this right. The asylum application is transmitted in the usual conditions to the OFPRA, who will have to decide within 96 hours on the request (Article R.723-3) and the expulsion procedure cannot in any event be put to execution before the office has ruled.
Finally, three situations may arise:
1. The General Director of OFPRA has granted the asylum application and gives the benefit of protection (refugee status or subsidiary protection):
In this case and according to the usual rules, detention shall be immediately ended and the alien is invited to visit prefecture in order to fulfil the formalities for the grant of a residence permit on the basis of the international protection granted.
2. The General Director of OFPRA refuses asylum:
In this case, the measure of expulsion can be executed, subject to the exercise by the applicant of litigation remedy provided for in Article L.512-1 of CESEDA, which has suspensive character. The appeal brought before the National Court of Asylum against the decision of the OFPRA is not, however, suspensive of the expulsion, since this decision was taken on a priority procedure.
3. The General Director of OFPRA reports to the prefect the asylum application of the person concerned, stating that it does not appear to be manifestly unfounded, and that therefore needs further consideration:
In this case, the prefect is invited to put an end the detention and the alien can then be provided with a safe conduct granting temporary immunity from arrest in order to go to the prefecture to carry out the formalities inherent to his capacity as applicant.
The request is then dealt with, according to its characteristics in normal procedure or priority procedure.
I invite you to adopt this operative mode in case of asylum application in detention and I ask you to let me know any difficulties of implementation that may arise.
For the Minister and by delegation:
The Director General of Foreigners in France
15th January 2014 – Interior 2014-1 – Page 2"
- Asylum seekers in detention centers in 2012
1140 asylum seekers and 9 protections granted (success rate: 0,6%)
11 Sudanese seeked [sic] asylum from a detention centre and 1 statut [sic] of refugee granted (success rate: 10%)
Sudanese in French detention centers 2012-2013
|To a state member under Schengen proceeding||16 22%||18 20%|
|To a state member under Dublin proceeding||9 12%||6 7%|
|To Sudan||6 8%||2 2%|
|Annulment of detention order (court or local authority)||22 30%||41 45%|
|Annulment of the expulsion order (court)||13 18%||10 11%|
|Released at end of maximum detention (45 days)||2 3%||5 5%|
|ECHR||2 3%||4 4%|
|Asylum||1 1%||1 1%|
|Health||1 1%||2 2%|
|Others – Unknown||1 1%||2 2%|
|Home custody||0 x||1 1%|