France - National Court of Asylum, 7 January 2016, Mrs S spouse of M and Mr M v Director General of OFPRA

Country of Decision:
Country of Applicant:
Date of Decision:
07-01-2016
Citation:
CNDA, 7 January 2016, Nº15025487, 15025488
Court Name:
The National Court of Asylum
National / Other Legislative Provisions:
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.723-16
France - Declaration of Human Rights (1789) - Art. 16
France - Declaration of Human Rights (1789) - Art. 4
France - Declaration of Human Rights (1789) - Art. 5
France - Declaration of Human Rights (1789) - Art. 6
France - Ordinance of 7 November 1998 priority preliminary ruling on constitutionality - Art 23.1
France - Ordinance of 7 November 1998 priority preliminary ruling on constitutionality - Art 23.2
France - Constitution - Art 88.1
Printer-friendly versionPrinter-friendly version
Headnote: 

A subsequent application is not admissible unless the interested party presents new facts or elements relating to his personnel situation or to the situation in his country of origin, out of which he could not have had knowledge of previously, and likely, if they have probative value, to modify the appreciation of the legitimacy or the credibility of the application of the interested party.

The director general of OFPRA was right to find that the elements that the applicants presented before him did not significantly increase the probability that they would meet the qualifying conditions to claim protection and that their subsequent applications were inadmissible, without having undertaken a hearing before making the decision on inadmissibility.

Facts: 

Mr and Mrs M. are Kosovan nationals. They state that they currently and personally fear persecution should they return to Kosovo because Mrs M belongs to the Ashkali minority and as a result of the multi-ethnic couple that they form.

Mr and Mrs M both made an application for asylum to the French Office for Protection of Refugees and Stateless People (OFPRA) on 9 October 2013. The Managing Director rejected these applications. By a decision made on 25 June 2015, the CNDA rejected their appeals against these decisions. On 5 August 2015 Mr and Mrs M made a subsequent application. These applications have been subject to two inadmissibility decisions on 10 August 2015 on the ground that the elements that they presented did not significantly increase the probability that they meet the conditions required to claim protection.

The applicants maintain that their subsequent application, which contains elements significantly increasing the probability that they meet the conditions required to claim international protection are justified, that the office could not dispense with convening a hearing in light of the new elements presented in support of the subsequent application. 

Decision & Reasoning: 

There is reason to join the appeals of Mrs and Mr M to give a ruling by a single decision.

The organisations ELENA France and Cimade can validly intervene before the Asylum judge, their interventions must be permitted.

The priority preliminary ruling on constitutionality

The CNDA, upon receiving an argument alleging that a legislative provision violates the rights and liberties guaranteed by the Constitution, presented in writing with reasons, rules without delay by a motivated decision on the transmission of the priority preliminary ruling to the Council of State and proceeds to this transmission on the triple condition that the contested provision:

-    is applicable to the legal dispute or to the procedure;

-    has not already been declared compliant with the Constitution by a decision of the Constitutional Council, except a change of circumstances;

-    that the question is not devoid of serious character.

It follows from Article 88-1 of the Constitution that in the absence of an issue relating to a rule or principle inherent in the constitutional identity of France, the Constitutional Council does not have jurisdiction to control the compliance with rights and liberties that the constitution guarantees of legislative provisions which are limited to drawing the necessary conclusions from unconditional and precise provisions of a directive of the European Union.

In this case, it is not only up to  a European Union Judge, to whom the question has been referred for preliminary ruling, to control the compliance with the fundamental rights guaranteed by article 6 of the Treaty of The European Union by this directive.

Article L.73-16 of the Code of Entry and Residence of Aliens and the Right to Asylum, is limited to drawing the necessary conclusions from unconditional and precise provisions of articles 33(2)(d) and 40(3) and (5) of the directive 2013/32/UE. 

The applicants maintain that this transposition of the directive would call into question the constitutional objective of intelligibility and accessibility of the law, including and as far as this objective constitutes a guarantee of asylum law, yet neither L.723-16 nor the directive defines what is a new fact or element which ‘significantly increases the probability’ of meeting the conditions required to claim protection.  Such an objective does not constitute a rule or principle inherent in the constitutional identity of France.

Consequently, the priority preliminary ruling on constitutionality raised is lacking in serious character, there is no reason to transmit the ruling to the Council of State.

Arguments alleging non-compliance with the Law of the European Union

The applicants maintain that article 40(3) of the directive and article L.723-16 disregard the general principle of legal certainty inherent in European Union Law. 

1.  It is for the administrative judge, upon receiving an argument alleging the disregard by a directive of a general principle of European Union Law or provisions of the European treaties, to investigate if the directive is compatible with these principles and provisions. In the absence of serious doubt concerning validity, it is for the judge to set aside the argument relied upon. In the contrary case, it is for the judge to refer the issue to the Court of Justice for a preliminary ruling.

2.  When an argument that a law transposing a directive would be itself incompatible with a general principle of European Law is raised before an administrative judge, it is for the administrative judge to ensure that the law is an exact transposition of the directive’s provisions. If that is the case, the argument that the principle has been disregarded by the transposing law cannot but be assessed other than by the control of the directive itself.

Regarding the arguments questioning the validity of the directive 2013/32/UE of the European Parliament and Council 26 June 2013

The misconception of the principle of legal certainty

The general principle of legal certainty constitutes a fundamental principle of EU law. It requires that a regulation is clear and precise, so that litigants can know without ambiguity, their rights and obligations and make all necessary arrangements in advance. 

However, whilst this regulation is intended to apply to an indefinite number of situations which are  impossible to envisage in advance, the principle does not require that the precise cases are detailed in the legislative instrument.

1.  It results from article 40(3) read alongside article 33 of the directive 2013/32/EU, that article 40(3), does not contradict the other legislative provisions of the directive relative to the general regime of inadmissible applications, but specifies these provisions in defining the new element or fact susceptible to justifying the inadmissibility of the subsequent application at the end of the preliminary examination as that which does not significantly increase the probability that the applicant meets the conditions required to claim international protection.

2.  The applicants assert that this definition is itself imprecise and equivocal, so as the applicant is not able to assess in advance the qualifying conditions to contact OFPRA in view of review of their request. The criteria of new elements or facts which “significantly increase the probability” as specified in Article 40(3), relates only to the assessment of the probative value attached to new facts or elements presented to justify a complete review of the application, including those elements and facts which have already been examined during a previous application.

Article 40(3) is, therefore, compliant with the general principle of legal certainty.

The misconception of the right to asylum

The applicants are not right to claim that this provision of the directive is contrary to  article 18 of the Charter of Fundamental Rights of the European Union, nor contrary to the Treaty on the Functioning of the European Union (particularly articles 67(2) and 78) as it cannot ensure a common and uniform application of asylum law in accordance with the Geneva Convention and this treaty.

The arguments questioning the validity of the directive 2013/32/EU must be dismissed. 

Arguments relating to L.723-16 of the Code of Code of Entry and Residence of Aliens and the Right to Asylum

1.  The provisions of article L.723-16 are limited to transposing in the same terms, the provisions of the directive previously cited, this transposition is not contrary to the general principle of legal certainty nor to article 18 of the Charter and to the Treaty on the Functioning of the European Union (articles 67(2) and 78).

2.  The applicants state that the application of article L.723-16 disregards the essential procedural guarantee of hearing asylum seekers as specified in the directive 2013/32/UE.

•    It permits the office in the context of a preliminary examination to dismiss as inadmissible a subsequent application without hearing or adversarial discussion on the validity of the grounds for inadmissibility.

•     The opposition of this inadmissibility decision without hearing  can only be subject to the limited control of the asylum judge which does not guarantee sufficient respect of the right to be heard in the case of an irregular inadmissibility decision.

When the Court finds that the office has taken the decision without a personal hearing with the applicant outside of the cases allowed by law, L.735 of the Code of Code of Entry and Residence of Aliens and the Right to Asylum provides that the court quashes the decision of the director general of OFPRA and sends back to him the examination of the asylum application.

The applicants are not right  in their submission that the provisions contested are contrary to the foundational principles and the fundamental guarantees of the right to be heard, or that the asylum judge cannot ensure an effective control.

The argument concerning non-compliance with the Geneva Convention

The applicants could not maintain that article L.723-16 introduces a threshold which is too high regarding establishing a risk of persecution or of serious harm to claim the right of a subsequent application, contrary to the principle of the doubt. The preliminary examination of an application does not aim to rule on the eventual rejection  of a refugee but to determine if the new elements or facts presented are of a nature to justify a subsequent application.

The legitimacy of the requests for a subsequent application

As a result of article L.723-16 the subsequent application is not admissible unless the interested party presents new facts or elements relating to his personnel situation or to the situation in his country of origin, out of which he could not have had knowledge of previously, and likely, if they have probative value, to modify the appreciation of the legitimacy or the credibility of the application of the interested party.  When the new facts or elements are admissible, there is reason to rule on the right of the interested person, taking account of all of the facts that he raises in his new application, including those already examined.

In support of their application for review, the applicants maintain that they were victims of acts of persecution and feared, with reason, persecution again upon their return to Kosovo, being unable to rely on the protection of the authorities in their country. They include the facts alleged in support of their initial applications and assert that they have established the Ashkali origin of Mme M and that they have learnt via a neighbour that they are sought by a group of people opposed to their marriage who would go every week to their old address. M M.’s sister informed them that the individuals had damaged their house, breaking  windows and using racist insults.

1. The new elements provided by the interested party on the Ashkali origin of Mme M would not allow a review of the whole of their demands.

2. The elements that they have provided, the statements of third parties and photographs to establish that their home has been subject to repeated acts of ill will since their departure from the country are not sufficiently substantiated to establish these new facts. They cannot be considered as objective or reliable testimonies.  These photographs and testimonies are lacking in probative value.

3. The medical certificate from the Centre Medico-Psychologique concerning Mme M. which is confined to certifying the medical care that she has received, does not contain a description of any medico-legal statement in line with the events which were the cause of their fleeing from Kosovo. The certificate is not a new element. The same goes for the statement of the Ashkali Democratic Party of Kosovo and the submission, relying on general public documents, of the general situation in Kosovo. These impersonal documents do not establish what and from whom the applicants would be currently and personally the subject of threats of persecution or serious harm in Kosovo.

4. The statements established in March 2015 are prior to the current decision. They do not constitute new elements.

The elements presented by the applicants are not likely to modify the appreciation of the credibility of the previous applications of the interested parties, and therefore do not significantly increase the probability that they meet the qualifying conditions to claim protection.

The director general of OFPRA was right to find that the elements that the applicants presented before him did not significantly increase the probability that they would meet the qualifying conditions to claim protection and that their subsequent applications were inadmissible, in applying article L.723-16, without having undertaken a hearing before making the decision on inadmissibility.

The appeals of Mr and Mrs M. must be dismissed. 

Outcome: 

The interventions of ELENA France and Cimade are admitted

There is no reason to transmit the priority preliminary ruling on constitutionality to the council of state.

The appeals of Mr and Mrs M are dismissed.

The decision will be notified to Mr and Mrs M and to the director general of OFPRA. 

Subsequent Proceedings : 

This case hails back to previous Council of State jurisprudence which confirms that a subsequent application can be deemed to be inadmissible without any interview where the new documents/ evidence provided were without merits.

Observations/Comments: 

This case summary was written by Harriet Hartshorn, a BPTC student at BPP University. 

This case summary was proof read by Charlotte Durante, a LPC student at BPP Cambridge.