France – Council of State, N° 410280, 17 January 2018

Country of Decision:
Country of Applicant:
Date of Decision:
17-01-2018
Citation:
N° 410280
Court Name:
Council of State
National / Other Legislative Provisions:
France - L. 761-1 du code de justice administrative
France - la loi n° 2015-925 du 29 juillet 2015
France - CESDA L. 744-9
France - CESDA D. 744-26
France - CESDA Annex 7-1
France - CESDA L. 744-8
France - article L. 345-2-2 du code de l’action sociale et des familles
France - Décret n° 2017-430 du 29 mars 2017 Article 6
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Headnote: 

Following on from a request by several French NGOs to annul Decree No. 2017-430 of 29 March 2017 containing various provisions relating to the allowance for asylum seekers, the French Council of State annuls Article 6(2) of the Decree since it does not set in the Code on the entry and residence of aliens and the right of asylum (CESDA) an additional daily amount sufficient to enable adult asylum seekers who have accepted an offer of care, but to whom no accommodation place can be offered, to have accommodation on the private rental market.

 

Facts: 

According to domestic legislation, namely Article L.744-9 of the Code on the entry and residence of aliens and the right of asylum (CESDA) an asylum seeker who has accepted material reception conditions shall, where conditions of age and means are met, receive an allowance. This allowance is to be prescribed in a decree and tailored according to the resources of the person concerned, the type of accommodation and the number of adults and children who make up the applicant’s family. According to Annex 7-1 of the CESDA an additional daily amount of 4.20 euros shall be paid to each adult asylum seeker who has accepted the offer of care, to whom no place of accommodation may be offered in one of the places mentioned in Article L. 744-3.

On 23 December 2016 the Council of State (CE, 23 déc. 2016, n° 394819) found the aforementioned provisions to be unlawful in that they did not set an additional daily amount sufficient to enable adult asylum seekers, who had accepted an offer of care and to whom no accommodation place could be offered, to have accommodation available on the private rental market. This decision was followed by a decree of 29 March 2017 in which the additional amount of the allowance was raised from 4.20 euros to 5.40 euros per day. The decree also specified that the amount of allowances was to be reduced in Saint-Martin and Guyana and provided OFPRA (the French immigration authority) with the possibility of refusing the amount to persons who had committed fraud or who had lied about their accommodation. The French organisations La Cimade, la Fédération des acteurs de la solidarité, l’association Dom’Asile, le Groupe d’information et soutien des immigrés et l’association groupe accueil et solidarité lodged a request to annul this decree on the basis of an abuse of power.

Decision & Reasoning: 

The Council of State first considered that it is always open to the administration, even where no text expressly authorises it, to reject a fraudulent request. The organisations are thus not justified in arguing that the decree, from this perspective, is vitiated by incompetence and disregards the objectives of the recast Asylum Procedures Directive (APD). Similarly, the organisations submissions on the absence of justifications for a lower amount paid to applicants in French Guiana does not make it possible to establish that the allowance paid disregards the objectives of the APD.

In respect of the allowance prescribed in the March 2017 Decree, the Council notes that as per Article 17 of the recast Reception Conditions Directive (RCD) where a Member State is unable to offer an asylum seeker accommodation in kind, it must pay him a financial allowance of an amount sufficient to enable him to have accommodation on the private rental market. The Council notes that when one has regards to the cost of housing in certain areas where a large amount of asylum applicants are concentrated, the amount of 5.40 euros in the decree remains manifestly insufficient to enable an asylum seeker to have access to housing on the private rental market. Therefore, the organisations are justified in arguing that the Decree of 29 March 2017 did not set an additional amount sufficient to enable asylum seekers who are not offered accommodation in kind to have accommodation on the private rental market and that the relevant aspects of the Decree are vitiated by illegality.

The Council of State orders the Prime Minister to fix, within two months of notification of the decision, an additional sufficient amount and annuls the decree, only to the extent that an additional daily amount has not been fixed. According to the Council of State this is to take effect from 1 June 2018.  

Outcome: 

Article 6(2) of the Decree of 29 March 2017 is annulled in so far as it does not set in the last paragraph of Annex 7-1 to the CESDA an additional daily amount sufficient to enable adult asylum seekers who have accepted an offer of care and to whom no accommodation place can be offered, to have accommodation on the private rental market.

Subsequent Proceedings : 

Decree no. 2018-426 of 31 May 2018 has fixed the allowance to 7.40 euros per day.

Case Law Cited: 

France - Council of State, 23 December 2016, n° 394819