France – Council of State, 31 July 2017, Nos 412125, 412171

Country of Decision:
Country of Applicant:
Date of Decision:
31-07-2017
Court Name:
France - Council of State, 6th Chamber
Relevant Legislative Provisions:
National / Other Legislative Provisions:
France - The French Constitution
France – Code of Social Action and Families
France - Code of Entry and Residence of Foreigners and the Right to Asylum
France – General Code of Local Authorities
France – Law 91-647 of 10 July 1991 on Legal Aid
France – Law n°2011-333 of 29 March 2011
France – Code of Administrative Justice
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Headnote: 

It is within the powers of the interim relief judge to order urgent measures to stop serious and illegal harm to fundamental rights of migrants in Calais.

Facts: 

The Applicants, Commune de Calais and the French Minister of the Interior, appealed to the Council of State to have the court order of 26 July 2017 of the injunction relief judge of Lille’s Administrative Tribunal quashed. The claims are joint as they relate to the same order. This order of 26 July 2017 required the competent authorities to put in place, within ten days, with penalties amounting to 100 euros per day of delay, appropriate access to water enabling the migrants to drink, wash themselves and their clothes, latrine, to provide access to showers and to organise departures towards reception facilities for asylum seekers across all of the French territory.

Decision & Reasoning: 

The Council of State examined the six pleas of the Applicants in turn:

·         Provisional admission to legal aid: no need to consider this issue pursuant to article 8 of the law 91-647 of 10 July 1991 on Legal Aid.

·         Legality of the Injunction: The French Minister of the Interior cannot declare that the injunction order was made disregarding the principle that both sides must be heard because it did not raise this plea in earlier litigation.

·         Article L.521-2 of the French Code of Administrative Justice: Stressing the urgency of the particular situation, it is within the powers of the interim relief judge to order provisional measures to remedy the serious and illegal harm to fundamental rights of migrants in Calais, within forty-eight hours.

·         Injunction to put in place access to water, latrine and showers: The living conditions of asylum-seekers in Calais amounts to inhuman and degrading treatment. The injunction relief Judge of Lille’s Administrative Tribunal was correct in his decision to take the necessary measures to eliminate the failure of authorities to put in place access to water.

·         Injunction to organise departures towards reception facilities for asylum seekers across the French territory: the French Minister of Interior is wrong in declaring that this injunction is established on the right to emergency housing and gives rise to a breach of equal treatment.

Article L.761-1 of the French Code of Administrative Justice: M.O… and others will not pay the amount requested by the Applicants because they are not the losing party.

Outcome: 

Appeals denied.

Subsequent Proceedings : 

ECtHR ongoing case: Khan v. France (no. 12267/16)

UK, 28 March 2017: The UK Upper Tribunal (Immigration and Asylum Chamber) rules against the Home Office’s attempt to stay the proceedings of two unaccompanied minors currently in Calais to reunite with the family members living in the UK. The fundamental rights of the claimants to access a court, particularly in view of their vulnerable situation as unaccompanied minors calls for an urgent judicial decision.

Observations/Comments: 

This case summary was written by Clara Gautrais, LPC student at BPP University.