23 April 2015

The new AIDA report on France comes amidst parliamentary debates on a draft law on asylum, transposing the recast Asylum Procedures Directive and the Reception Conditions Directive. The main reforms proposed aim to inter alia introduce suspensive effect for all appeals before the National Court of Asylum (Cour Nationale du Droit d’Asile), which would enable asylum seekers to remain on French territory while their appeal is pending; including persons whose applications were examined in accelerated procedures. Other reforms include a more restrictive definition of ‘safe country of origin’; detailed rules on special procedural guarantees for vulnerable applicants; equal rights of residence for all asylum seekers with claims processed in France and a new framework for reception.

The draft law on asylum includes an amendment which specifies that asylum applications from persons originating from countries considered to be safe shall not be automatically processed under accelerated procedures. The Office for the Protection of Refugees and Stateless Persons (OFPRA) will decide on the formal requests by asylum seekers to have their claims examined through regular procedures due to their personal situation in their country of origin.

In October 2014, the French Council of State (Conseil d’Etat) removed Kosovo from the list of safe countries of origin, less than a year following its addition by OFPRA. However, Georgia and Albania, added under the same decision as Kosovo, are still considered safe countries.  

Moreover, the first evaluation conducted under the Quality Control Initiative agreed by OFPRA and UNHCR has revealed serious shortcomings in around 15 to 25% asylum decisions, namely relating to dubious conclusions on applicants’ lack of credibility and often insufficient legal analysis of the applications by OFPRA personnel. According to the evaluation, OFPRA officers also tend to underestimate applicants’ well-founded fear of persecution upon return.

The report also documents recent developments in relation to claims lodged in detention. While previously it was not possible for detainees to lodge an asylum application after their fifth day in detention, the Conseil d’Etat held in July 2014 that detainees may apply for asylum following the five-day deadline. Although it constitutes a real improvement to guarantee the right to asylum in detention, the procedure still does not allow asylum seekers who have submitted a claim within the five-day deadline to submit new facts and circumstances after the deadline has passed. French law does not allow detaining asylum seekers solely for applying for asylum. A recent information note by the Minister of Interior calls on OFPRA to undertake an individual assessment of each person who applies for asylum in detention to determine whether they should be released from detention and granted a temporary residence permit.

Moreover, amendments adopted in 2014 have now brought the French Labour Code in line with the recast Reception Conditions Directive and the Cimade & GISTI ruling of the Court of Justice of the European Union, by clarifying that asylum seekers awaiting return to another Member State under the Dublin system are entitled to a temporary financial allowance. The same applies for persons whose asylum applications are examined under accelerated procedures. Nevertheless, the AIDA update indicates that these material reception conditions are yet to be delivered in practice.

The AIDA update also bears special focus on recent developments in the situation of asylum in Mayotte, a French island off the South East African coast. Mayotte’s newly established status of ‘ultra-peripheral’ French region as of 1 January 2014 has made it necessary to transpose the EU Directives relating to asylum and return. Nevertheless, the French government has retained a number of problematic exemptions in the area of procedures, reception and detention, all of which may adversely affect asylum seekers in Mayotte. The ambiguous asylum regime in Mayotte raises questions around the scope of application of the CEAS Directives and could trigger future litigation.

A draft law on the stay and removal of foreign nationals has been introduced in July 2014 as well but is still to be discussed at legislative level.

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This article was first published on the ECRE website on 23 April 2015 and subsequently appeared on the ECRE Weekly Bulletin of 24 April 2015. You can subscribe to the Weekly Bulletin here.