France - Administrative Tribunal of Nantes, decision of 16 September 2014, No 1407765

Country of Decision:
Country of Applicant:
Date of Decision:
16-09-2014
Citation:
No 1407765
Court Name:
Administrative Tribunal of Nantes (Judge: Mrs Brisson)
National / Other Legislative Provisions:
France - Administrative Justice Code - Art. L.761-1
France - Administrative Justice Code - Art. L.521-2
France - Law of 10 July 1991 - Art. 37
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law)
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Headnote: 

A claim challenging the refusal to grant a visa -in order to claim asylum on French territory- qualifies as being urgent. The consular authority is not qualified to assess the asylum claim. 

Facts: 

In this case the applicant, a Christian national (her son and two other minor children) from Syria (Aleppo) with Armenian origin, requested in February 2014 a short-term visa from the French consular authority based in Beirut. This request for a visa was made in order to enter French territory and claim asylum there on grounds of inhumane and degrading treatment that the family had suffered in Syria. The request for the visa was rejected by the French consular authority on the 25th of July 2014, who indicated that the applicants asylum application had been refused.  

Decision & Reasoning: 

The procedure relates to a liberty-emergency interim relief measure (provided for in article L.521-2 of the Administrative Justice Code), which allows applicants to request an administrative judge to take useful emergency measures (within 48 hours) in case of a grave and blatantly illegal breach of a fundamental freedom.

Regarding the emergency of the procedure, the Administrative tribunal held that the applicants’ profiles and the fact that they lived in Aleppo, meant that they were personally exposed to risks in Syria.  . The Consular authority’s refusal to grant the visa on the basis that the asylum claim is unfounded was clearly intended to prevent the applicant from legally entering French territory and claiming asylum there, thus the claim can be considered as being urgent (even though there is no provision in the CESEDA -Code of the Entry and Stay of Foreigners and Asylum Law- regarding granting visas to people claiming asylum).  

Additionally, given the constitutional right of asylum, its status as a fundamental liberty and the corollary right to request asylum, the assessment of  risks of persecution should only be carried out by the OFPRA (French Protection Office for Refugees and Stateless persons) and the CNDA (National Court of Asylum). By assessing the asylum claim and declaring it unfounded and subsequently refusing to grant the visa on this basis, the Consular authority violated obligations linked to reception of asylum seekers and on the basis of the particular circumstances of the case was a serious and manifestly illegal infringement of a fundamental liberty, leading to serious consequences for the applicants.

Hence, the Tribunal required the Ministry of Interior to grant the visa. 

Outcome: 

Tribunal accepts the urgency of the request.

The intervention of GISTI association in the case is accepted.

The Ministry of Interior is requested to grant the short-term visa to enter French territory to the applicant within 5 days of the judgment.

Subsequent Proceedings : 
Whilst the legal finding is different to this case, on June 18, 2014, the French Council of State (CE n ° 366 307) did determine that the requirement of a transit visa for Syrians (in general) is not in itself a violation of the right to asylum. Additionally the Council of State held ( July 9, 2015, n ° 391 392) that in a case concerning visa applications for Syrians in Beirut, that there was no obligation to issue visas because in that case there was not ‘a serious and manifestly illegal breach of the right to asylum' since the persons involved were under UNHCR protection. The topic of Humanitarian Visas has also been raised in Belgian case law, leading to a preliminary reference to the CJEU in Case C-638/16 PPU.
Observations/Comments: 

This case summary was completed by Marina Pinault, an LLM graduate of Leiden University.