France - Council of State, 18 December 2008, Ofpra vs. Ms. A., n°283245

Country of Decision:
Country of Applicant:
Date of Decision:
18-12-2008
Citation:
Conseil d’Etat, 18 décembre 2008, Ofpra c/ Mme A., n° 283245
Additional Citation:
CE, 18 décembre 2008, Ofpra c/ Mme A., n° 283245
Court Name:
Council of State/Conseil d’Etat
National / Other Legislative Provisions:
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.313-13
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.712-1
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.712-3
Printer-friendly versionPrinter-friendly version
Headnote: 

The principle of family unity, which is a general principle of refugee law resulting in particular from the 1951 Refugee Convention, is not applicable to persons falling within the scheme of subsidiary protection, as defined both by the Qualification Directive and by the internal legislative provisions which transpose it.

Facts: 

The applicant from Armenia, lodged an asylum application in 2004, along with her husband who was also Armenian. The two applications were rejected by the French Office for the Protection of Refugees and Stateless Persons (Ofpra). On appeal, the Commission des Recours des Réfugiés (Refugee Appeals Commission) (CRR/CNDA) granted subsidiary protection to the applicant’s husband and, in another decision, decided that the applicant could only benefit from subsidiary protection in accordance with the principle of family unity. The Ofpra requested the Council of State to quash this decision. 

Decision & Reasoning: 

The Council of State firstly recalled the provisions of Article 1 A (2) of the 1951 Refugee Convention as well as the French legislative provisions relative to subsidiary protection (articles L.712-1 and L.712-3 Ceseda). It also quoted the provisions of Articles 23.2 and 24.2 of the Qualification Directive.  It recalled that in compliance with the objectives of this directive, French legislation provides that a temporary residence permit is automatically granted to the foreigner who was granted subsidiary protection as well as to his/her spouse and minor children, except for reasons of public order (…).

The Council of State declared secondly that the Cour Nationale du Droit d’Asil (National Asylum Court) (CRR/CNDA) based its decision to grant subsidiary protection to the applicant on the ground that, as the spouse of a person of the same nationality who was granted subsidiary protection, she was entitled to the benefit of the principle of family unity which is a general principle of refugee law resulting in particular from the 1951 Refugee Convention. The Council of State considered that the CRR/CNDA made a legal error by basing its decision on this ground whereas it followed from the above-mentioned provisions that refugee law arising from the 1951 Refugee Convention is not applicable to persons falling within the scheme of subsidiary protection, as defined both by the Qualification Directive and by the internal legislative provisions which transpose it.

The Council of State therefore concluded that the request of the Ofpra to quash the decision of the CRR/CNDA was well-founded. The applicant should ask the Prefecture to grant her a temporary residence permit. The case was referred to the CNDA.
 

Outcome: 
The case was referred to the CNDA.
Subsequent Proceedings : 

Before the CNDA, the applicant argued that she should be recognized as refugee or, at least, granted subsidiary protection on an individual basis. In a decision made on 20 April 2010 (CNDA, 20 avril 2010, Mme A., n°487615/04013975), the CNDA rejected her application for refugee status but considered that the acts from which she suffered because of her husband’s activities amounted to inhuman and degrading treatment and concluded that she should be personally granted subsidiary protection. 

Observations/Comments: 

Regarding the issue of family unity in the context of subsidiary protection, this decision gives a distinct interpretation than the CNDA in its decisions CNDA, Sections réunies, 12 mars 2009, Mlle K. n° 639908 et Mme D. épouse K., n° 638891, (also included in this database).

The Council of State however confirmed its present findings in a subsequent decision (CE, 15 December 2010, Ofpra c. Ms. A., n° 332186).

NB: The CNDA (National Asylum Court) was called CRR (“Commission des recours des réfugiés”, Refugee Appeals Board) until the Act n°2007-1631 of 20 November 2007.