France - Administrative Court of Limoges, M. Mohsen HAGHBIN, n° 1601062,1601063, 25 July 2016

Country of Decision:
Country of Applicant:
Date of Decision:
25-07-2016
Citation:
Administrative Court of Limoges, M. Mohsen HAGHBIN, n° 1601062,1601063, 25 July 2016
Court Name:
Administrative Court of Limoges
Relevant Legislative Provisions:
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms
Council of Europe Instruments
National / Other Legislative Provisions:
France - Code for entry and residence of foreign persons and the right of asylum (CESEDA)
France - Law no. 91-647 dated 10 July 1991 as modified relating to legal aid and its implementing decree no. 91-1266 dated 19 December 1991
France - French Administrative Justice Code
Preamble of the French 1946 constitution
Article 23 of the International covenant on civil and political rights
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Headnote: 

M. Haghbin, an Iranian student having multiple sclerosis, had been expelled back to Iran by a Prefect’s decree ordering him to leave France.

By order, the Judge (of interim urgent measures) of the administrative court of Limoges concluded that there had been a serious and immediate breach of the right to an effective appeal as well as a serious and immediate breach of the right to personal liberty.

As a result, (i) the Prefect of Haute-Vienne and the Prefect of Vaucluse were ordered to organise the return of M. Haghbin to France as soon as possible and at the French State’s costs; and (ii) the French State was ordered to deliver to M. Haghbin the document required by the Iranian police and the airline company confirming he is authorised to come to France. It was also ordered to provide him with the medicine his treatment required for the time period necessary for his return to France.

Facts: 

M. Haghbin, an Iranian student, legally came to France on 25 August 2013 under, first, a long-term visa expiring on 14 August 2014 and then, a temporary resident card expiring on 31 October 2015. On 13 October 2015, M. Haghbin submitted a request for a renewal of his temporary resident card to the Prefect of Haute-Vienne.

By a decree dated 25 February 2016 (notified to M. Haghbin on 29 February 2016), the Prefect of Haute-Vienne issued a refusal to the renewal request accompanied by an order for M. Haghbin to leave France within 30 days. By a letter received on 14 March 2016, M. Haghbin submitted an informal appeal to the Prefect of Haute-Vienne, mentioning in particular his health issues. By its decision dated 13 April 2016, the Prefect of Haute-Vienne rejected this request.

On 20 July 2016, M. Haghbin was arrested by the police while leaving the Avignon University and taken to the premises of the National Police, where he was notified of the decision of the Prefect of Vaucluse, detaining him from 20 to 25 July 2016 with a view to ensuring the execution of the expulsion measure given by the Prefect of Haute-Vienne’s decree dated 25 February 2016.

On 22 July 2016, M. Haghbin was expelled from France back to Iran.

Decision & Reasoning: 

The Judge (of interim urgent measures) stated that the automatic execution of an expulsion measure cannot be applied, including regarding a foreigner in detention, when (i) the timeframe for an appeal against the decision has not expired, (ii) an appeal has been submitted and the administrative court has not yet held a decision, or (iii) the measure has been cancelled.

In light of the investigation, the Judge noted that, M. Haghbin had submitted a request for legal aid with the relevant office in Limoges, within the appeal timeframe, and that no decision had yet been made when he was expelled. The Judge also referred to the fact that, at the time M. Haghbin was accompanied to the plane on 22 July 2016, an appeal had also been registered with the Court of Nîmes requesting the annulment of the detention measure decided by the Prefect of Vaucluse on 20 July 2016 and of the expulsion measure decided by the Prefect of Haute-Vienne on 25 February 2016.

The Judge held that, by executing the expulsion measure against M. Haghbin, whilst his appeal request was still pending before the administrative court, the French administration had committed a serious and manifestly unlawful interference with the right to an effective appeal, which implies in particular a right not to be expelled until the judgement regarding the appeal has been rendered. The Judge held that the breach was to be urgently ended.

Based on the instruction, the Judge also noted that, on 20 June 2016, the doctor of the Regional Development Agency of Limousin issued a “favourable” opinion. This opinion was to be construed as meaning that M. Haghbin required medical assistance, the absence of which could have consequences of exceptional seriousness for him, since there was no appropriate treatment in his home country. This opinion was transmitted to the Prefect of Haute-Vienne on 30 June 2016. In addition, the Prefect of Vaucluse had also been made aware of such an opinion before M. Haghbin was actually expelled back to Iran.

The Judge further indicated that this opinion, although not binding, constituted a new item which should have resulted in the Prefect authorities reviewing M. Haghbin’s situation again before the expulsion measure was executed. The Judge then held that, absent any express decision on the possibility, in light of this new item, of pursuing the execution of the expulsion measure, the Prefect authorities had inflicted a serious and manifestly unlawful interference with the right to the personal liberty of the Applicant. The Judge held that the breach was to be urgently brought to an end, since there was no appropriate treatment for M. Haghbin’s illness in Iran and the absence of treatment could have consequences of exceptional seriousness for him.

Outcome: 

(i) The Prefect of Haute-Vienne and the Prefect of Vaucluse were ordered to organise the return of M. Haghbin to France as soon as possible and at the French State’s costs; and (ii) the French State was ordered to deliver to M. Haghbin the document required by the Iranian police and the airline company confirming he was authorised to come to France. It was also ordered to provide him with the medicine his treatment required for the time period necessary for his return to France.

Subsequent Proceedings : 

Both requests no. 1601062 and 1601063 submitted by the same Applicant have exactly the same object. Their hearings have been combined for the Judge to statute by a single order.

Observations/Comments: 

This case summary was done by Linklaters LLP.