France - National Court of Asylum, 21 February 2012, No 11032252

Country of Decision:
Country of Applicant:
Date of Decision:
21-02-2012
Additional Citation:
CNDA, 21 February 2012, No. 11032252
Court Name:
National Court of Asylum
Relevant Legislative Provisions:
International Law
International Law > 1951 Refugee Convention
National / Other Legislative Provisions:
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law L 712-2
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law L 723-2
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law L 731-2
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Headnote: 

When the asylum claim of an applicant has not been individually assessed, the National Court of Asylum has to cancel the asylum refusal decision and the asylum claim has to be reassessed by the OFPRA.

Facts: 

The applicant, a national from Eritrea born in Ethiopia from Eritrean parents, fears persecution on grounds of her nationality or religion (Pentecostal movement) if she returns to either Eritrea or Ethiopia. Indeed, she left Eritrea irregularly and would have to do her military service.

In Ethiopia, in 1999, the applicant along with her family were arrested by Ethiopian military forces, detained for 5 days and then deported to Eritrea. There, in 2002, her father was arrested (for unknown reasons) and imprisoned. She has had no news from him since. Because of this arrest, the interdiction of the Pentecostal movement in Eritrea and the fact that her brother was about to have to do his military service, the mother decided to go to Sudan in January 2003 and lived in Khartoum. After her mother passed away, the departure of her brother from Sudan , she felt threatened in Sudan because of her religious beliefs and feared to be returned to Eritrea. She therefore decided to leave for Turkey (2007), then Greece (where she lived for 4 years  and was subject to difficult conditions) and arrived in France in June 2011.

She claimed asylum in France. This asylum claim was rejected by the OFPRA on the 17 November 2011. 

Decision & Reasoning: 

According to the applicant, the decision relies on the application of an internal memo (from 3 November 2011) inviting to dismiss asylum claims from people whose fingerprints are damaged without assessing the arguments put forward in the claim and without interviewing the claimants.

The Court highlights that the applicant’s asylum claim was properly registered. Nonetheless, the OFPRA rejected that claim on the grounds that the applicant did not produce ID or travel documentation and that she deliberately made it impossible to identify her fingerprints, thus rendering the assessment of the asylum claim impossible for the OFPRA.

The Court held that, by rejecting the asylum claim on that basis and without carrying out an individual assessment on the basis of the arguments the claimant put forward and the possibility of  receiving international protection status, the OFPRA violated an essential guarantee under article L.723-2 CESEDA. Therefore, the Court quashed the decision and requested the OFPRA to assess the claim again.

Indeed, even if the National Court of Asylum is not competent to rule on the legality of the OFPRA’s decision but can rule on whether or not to grant protection to the applicant by substituting its decision to the one of the OFPRA,  this is different when the applicant was deprived of the essential guarantee of an individual assessment on the basis of the arguments he or she put forward. In that case, the National Court of Asylum cancels the decision and asks for the claim to be reassessed by the OFPRA.

Outcome: 

The following organisations La CIMADE, la LDH and le COMEDE are not allowed to intervene in this case.

The asylum refusal decision (17 November 2011) is cancelled.

The asylum claim has to be re-assessed by the OFPRA.

Observations/Comments: 

This judgment from the National Court of Asylum follows a judgment from the Council of State (11 January 2012, No 354907) suspending the execution of the internal memo (3 November 2011).

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

Other sources cited: 

New-York protocol 1967 to the Geneva Convention