France - Council of State, Mrs. A. B. v. French Office for Immigration and Integration, 14 October 2016, n° 403522

Country of Decision:
Country of Applicant:
Date of Decision:
14-10-2016
Citation:
Mrs. A. B. v. French Office for Immigration and Integration [2016], CS, No. 403522
Court Name:
Council of State
National / Other Legislative Provisions:
France - Articles L. 521-2 and L. 761-1 of the Code of Administrative Justice
France - Articles L. 744-8 and D. 744-37 of the Code for the Entry and Residence of Foreigners in France and of Asylum Right
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Headnote: 

A Judge when hearing applications for interim measures may issue an injunction against the administration on the basis of Article L. 521 of the Code of Administrative Justice when the administration’s behaviour reveals a manifest disregard of any of the requirements within the right of asylum and such an action results in serious consequences for the asylum applicant, considering in particular his age, health status and family situation.

There had been a gap of more than one month between the twenty-four hour reconsideration order made by the Judge hearing applications for interim measures, and the offer of material reception conditions made by the French Office for Immigration and Integration. This was notwithstanding the fact that at the time of the injunction, the applicant was already in a situation of extreme vulnerability (with no financial resources and five dependent children). This therefore constituted a violation of the requirements within the right of asylum which was likely to have serious consequences for the asylum applicant.

Facts: 

Mrs. A. B. (the “Applicant”), a Chadian national who arrived in France in August 2014 together with her five children, filed an asylum application which was later dismissed by the Office for the Protection of Refugees and Stateless Persons (the “OFPRA”) and subsequently by the National Asylum Court (the “CNDA”) on 1 September 2015.

On 18 April 2016, the Applicant filed a subsequent application before the Préfecture du Maine-et-Loire. This application was dismissed by the OFPRA on 18 May 2016 on the basis of inadmissibility. The Applicant then filed an appeal before the CNDA.

The Applicant also sought the benefits of the material reception conditions (available for asylum seekers) from the French Office for Immigration and Integration (the “OFII”). This application was dismissed on 23 June 2016.

The Applicant then filed an application before the Judge of the Administrative Court of Nantes responsible for hearing applications for interim measures, on the basis of Article L. 521-2 of the Code of Administrative Justice (the “CAJ”). She requested an injunction against the OFII to re-examine her situation within a period of twenty-four hours. In an order issued on 12 August 2016, the Judge granted such injunction.

On 16 August 2016, the OFII sent the Applicant a letter (i) notifying its intention to deny her the benefit of the material reception conditions on the basis of Articles L. 744-8 and D. 744-37 of the Code for the Entry and Residence of Foreigners in France and of Asylum Right and (ii) inviting the Applicant to file her observations in reply within fifteen days. In reply, the Applicant filed her observations on 25 August 2016.

On 8 September 2016, the Applicant filed an action before the Judge of the Administrative Court of Nantes responsible for hearing applications for interim measures, on the basis of Article L. 521-2 of the CAJ requesting an injunction against the OFII to grant the benefits of the material reception conditions (housing, accompanying measures and travel warrant), including the asylum applicant allowance (the “AAA”) with effect from the date of the application for the re-examination based on the asylum right, i.e. 18 April 2016.

On 9 September 2016, the Judge issued an order dismissing the request and refusing to grant the injunction sought by the Applicant.

The Applicant filed an appeal against this order before the Council of State.

The CIMADE intervened in the proceedings in favour of the Applicant.

On 23 September 2016, while the case was pending before the Council, the OFII made an offer to the Applicant with respect to the material reception conditions, taking into account her situation of vulnerability. This offer was accepted by the Applicant. The OFII informed the Applicant that the material reception conditions will include the AAA with effect from 23 September 2016, with the first payment to be made around mid-October 2016.

Considering that the application had thereby lost its purpose, the OFII issued a motion for non-suit.

The Applicant however maintained her request relating to the payment of the AAA without delay and with effect from 18 April 2016, arguing that the delay in granting the material reception conditions was attributable to the OFII.

The OFII chose to maintain its motion for non-suit, arguing that the AAA could not be paid with a retroactive effect on 18 April 2016, i.e. prior to the date when the Applicant accepted the material reception conditions.

Decision & Reasoning: 

Regarding the housing, support and travel warrant

The Council acknowledged that the OFII made an offer to the Applicant on 23 September 2016 regarding the material reception conditions and that such offer was accepted by the Applicant, effectively allowing her to keep her current accommodation and to obtain accompanying measures as well as a travel warrant which was issued on 26 September 2016.

The Council therefore found that the Applicant’s requests with respect to housing, accompanying measures and the travel warrant were no longer relevant.

Regarding the AAA

The Council considered the fact that while the Applicant requested for the AAA with effect from 18 April 2016 (date of her application for a re-examination based on the asylum right), the OFII argued that the material reception conditions only allowed the payment of the AAA starting 23 September 2016 (date when the Applicant accepted the offer made by the OFII). The Council thus stated that the request for an injunction in this respect was still relevant and needed to be examined.

The Council therefore examined this request in view of the conditions set out in Article L. 521-2 of the CAJ for granting interim measures necessary to preserve a fundamental freedom (i.e. an emergency and a serious and obviously unlawful impairment).

The Council first stated that:

·         on the one hand, the Applicant now had an accommodation but did not have any financial resources for herself and her children, such that she was in a situation of insecurity which constituted an emergency within the meaning of Article L. 521-2 of the CAJ;

·         on the other hand, the deprivation of material reception conditions until a ruling has been given on the application was capable of constituting a serious and manifestly unlawful interference with the fundamental freedom constituted by the law of asylum, within the meaning of Article L. 521-2 of the CAJ when (i) a manifest breach of the requirements of the right of asylum occurs such that (ii) there are serious consequences for the asylum applicant, considering, in particular, his age, health status or family situation.

The Council then stated that the lack of the Applicant’s financial resources resulted from the fact that the OFII waited until 23 September 2016 to make an offer for material reception conditions whereas (i) the Judge of the Administrative Court of Nantes responsible for hearing applications for interim measures, had already issued an injunction against the OFII, on 12 August 2016, to re-examine the situation of the Applicant within twenty-four hours and (ii) the Applicant was already in a situation of extreme vulnerability at that date.

According to the Council, such a delay constituted manifest disregard of the requirements of the right of asylum by OFII, which was also likely to have serious consequences on the Applicant in consideration of her family’s situation.

In view of the above, the Council found that the Judge of the Administrative Court of Nantes responsible for hearing applications for interim measures, was wrong in refusing to issue an injunction against the OFII to pay the Applicant an AAA without delay and with effect from 16 August 2016. 

Outcome: 

The Council quashed the order issued by the Judge of the Administrative Court of Nantes responsible for hearing applications for interim measures dated 9 September 2016 and issued an injunction against the OFII to pay the Applicant the AAA taking into account her family situation within eight days following the service of the decision and with effect from 16 August 2016.

Observations/Comments: 

This case summary was done by Linklaters LLP.