France - Council of State, 6 February 2017, Mr. and Mrs. C., No. 392593

Country of Decision:
Country of Applicant:
Date of Decision:
Council of State, 6 February 2017, Mr. and Mrs. C. v National Court of Asylum, No. 392593
Court Name:
Council of State (‘Conseil d’État’)
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Where the ECtHR has, under Article 39 of the ECHR, granted interim measures prohibiting the Government from deporting the Applicant, this does not impact the ability of national courts to rule on the Applicant’s claim to asylum. The interim measures are binding on national authorities only.


The Applicants, Russian citizens of Chechen descent, entered France in 2010 and applied for asylum. In November 2011, their application was rejected by the French Office for the Protection of Refugees and Stateless Persons (‘OFPRA’), as confirmed by the National Court of Asylum (‘CNDA’). Their subsequent application was also rejected by the OFPRA in December 2012.

In May 2014, the Pyrénées-Orientales Prefecture informed the Applicants that they would have to leave France immediately and issued a compulsory residence order. In October 2014, the same Prefecture placed them in administrative detention. They appealed twice against both decisions but were unsuccessful.

The Applicants then made an application to the European Court of Human Rights (‘ECtHR’) for interim measures on the basis of Article 39 of the European Convention on Human Rights (‘ECHR’). The ECtHR requested that the French Government refrain from deporting the Applicants pending the outcome of their case.

Following this decision, the Prefecture released the Applicants from administrative detention and issued a second compulsory residence order.

The Applicants filed a second subsequent application before the OFPRA, which was rejected in October 2014. In April 2015, the CNDA ruled that they would not be able to appeal against the decision of the OFPRA.

The Applicants appealed against the decision of the CNDA. After the proceedings had been closed, they submitted a ‘note en délibéré’ containing the ECtHR decision. They contended that:

  1. The CNDA had tainted its decision with a contradictory statement of reasons and a distortion of the evidence in their files. The CNDA had acknowledged the decision by the ECtHR in allowing the Applicants’ subsequent application; however, it had rejected the application on the basis that no new evidence had been provided as to the risks of persecution. (N.B. on ‘notes en délibéré, see Article R. 731-3, Code of Administrative Justice (‘CJA’)).

The CNDA had breached Articles 6, 13 and 34 of the ECHR by failing to rule or to obtain a guarantee that the Applicants would not be issued with removal orders.

Decision & Reasoning: 

1. On refusing to reopen proceedings

The Council held that the CNDA had correctly followed the general rules concerning evidence provided after proceedings had been closed. It explained that a ‘note en délibéré’ need only be taken into account where it provides evidence of:

  1. Factual circumstances which the Applicant had previously been unable to disclose; or
  2. Legal circumstances which are material to the decision and must be taken into account.

In these circumstances, the Council held that the ‘note en délibéré’ did not provide evidence of either of the above, as the information had been fully discussed during the hearing before the CNDA in March 2015.

2. On breaching the ECHR

The Council held that the CNDA had not breached the ECHR. Firstly, it held that Article 6 ought to be disregarded as the CNDA was not concerned with determining the Applicants’ civil rights and obligations nor with any criminal charges against them.

Secondly, it held that Article 34 had not been breached. The interim measures had been granted to safeguard the right to the effective exercise of individual applications before the ECtHR. However, the interim measures did not impact the ability of national courts to rule on asylum applications. They were instead binding on the French Government alone.

Accordingly, where an Applicant had been definitively refused asylum, the interim measures would guarantee a right to remain in the national territory until the EctHR determined the merits of the case or put an end to the interim measures. Only at this point would the Prefecture be entitled to inform the Applicant of his obligation to leave under Article L. 511-1 of the Code of Entry and Residence of Foreigners and of the Right of Asylum (‘CESEDA’).

Finally, it held that Article 13 had not been breached because the correct procedure had been followed.


Appeal denied.


This case summary was written by Georgia Kandunias, GDL student at BPP University. 

Case Law Cited: 

France - Council of State, 8 April 2015, Mr. and Mrs. C. v National Court of Asylum, No. 14034370-14034371