Case Law

France – Council of State rules in case concerning the execution of an ECtHR judgment by the National Court of Asylum On 3 October, the French Council of State ruled in a case concerning the rejection of the asylum application of a national of the Democratic Republic of the Congo (DRC), despite a decision by the European Court of Human Rights (ECtHR) that considered him to be in a real risk of inhuman and degrading treatment upon return to his country. The applicant’s asylum request had been rejected both by the French Asylum Office and the National Court of Asylum. After two unsuccessful re-examination attempts, the domestic authorities issued a decision imposing an obligation on the applicant to leave the country. The applicant brought the case before the European Court of Human rights, where his claim of a possible violation of Article 3 of the European Convention on Human Rights (ECHR), upon his return to the DRC, succeeded. The applicant requested another re-examination of his case, but that request was rejected by the French Asylum Office and, on appeal, by the CNDA. It was considered that the risk of inhuman and degrading treatment could not be considered as established. The applicant sought to annul that decision before the Council of State. The Court based its reasoning on Articles 41 and 46 of the ECHR, regarding consequences of violation of a Convention right and the execution of definitive judgments. It found that the execution of a judgment by the ECtHR entails both an obligation to remedy the consequences of the violation and to eliminate its source. In addition to that, the State has to ensure the applicant receives the sums decided by the ECtHR as just satisfaction. Moreover, a decision that declares a removal as violating Article 3 ECHR constitutes a novel element that would justify the re-examination of the case. During this re-examination, the domestic authorities should refrain from executing any removal measure, while ensuring that the applicant will be protected from inhuman and degrading treatment, by being granted subsidiary protection status according to French law. The Court annulled the decision and remitted the case back to the National Court of Asylum for reconsideration. Based on an unofficial translation by the ELENA Weekly Legal Update.

3 October 2018 | Judicial Body: France: Conseil d'Etat | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Freedom from torture, inhuman and degrading treatment - Human rights courts | Countries: Congo, Democratic Republic of the - France

whether MAS, who is lawfully present in the UK, is the brother of MS, an unaccompanied minor who has made an asylum application in France; whether the UK has a duty of investigation once it receives a take charge request and the scope of any such duty

19 July 2018 | Judicial Body: United Kingdom: Upper Tribunal (Immigration and Asylum Chamber) | Legal Instrument: 2013 Dublin III Regulation (EU) | Topic(s): Family reunification | Countries: Afghanistan - France - United Kingdom of Great Britain and Northern Ireland

Les mots « et dans les délais » figurant à la première phrase du paragraphe IV de l’article L. 512-1 du code de l’entrée et du séjour des étrangers et du droit d’asile, dans sa rédaction résultant de la loi n° 2016-274 du 7 mars 2016 relative au droit des étrangers en France, sont contraires à la Constitution.

1 June 2018 | Judicial Body: France: Conseil constitutionnel | Topic(s): Appeal / Right to appeal - Effective remedy | Countries: France

Article 26(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person must be interpreted as precluding a Member State that has submitted, to another Member State which it considers to be responsible for the examination of an application for international protection pursuant to the criteria laid down by that regulation, a request to take charge of or take back a person referred to in Article 18(1) of that regulation from adopting a transfer decision and notifying it to that person before the requested Member State has given its explicit or implicit agreement to that request.

31 May 2018 | Judicial Body: European Union: Court of Justice of the European Union | Legal Instrument: 2013 Dublin III Regulation (EU) | Topic(s): Refugee status determination (RSD) / Asylum procedures | Countries: France - Germany - Iraq

Acts contrary to the purposes and principles of the UN are those that are likely to affect international peace and security, peaceful relations between states as well as serious violations of human rights. exclusion under 1F(c) depends on the existence of serious reasons to consider that part of the responsibility in the actions can be personally imputed to the applicant. The court has to assess whether the facts resulting from the investigation are such as to give rise to serious grounds for believing that the applicant was personally involved in such actions.

11 April 2018 | Judicial Body: France: Conseil d'Etat | Legal Instrument: 1951 Refugee Convention | Topic(s): Acts contrary to the purposes and principles of the United Nations - Exclusion clauses | Countries: France - Syrian Arab Republic

If acts of a terrorist nature may fall under Article 1 (b) of the Geneva Convention, terrorist acts of an international scale in terms of seriousness, international impact and implications for peace and international security may also amount to acts contrary to the purposes and principles of the United Nations within the meaning of Article F (c). In assessing whether there are serious reasons to consider that such an act has been committed, its gravity in relation to its international effects has to be examined.

11 April 2018 | Judicial Body: France: Conseil d'Etat | Legal Instrument: 1951 Refugee Convention | Topic(s): Acts contrary to the purposes and principles of the United Nations - Exclusion clauses - Terrorism | Countries: France - Türkiye

national protection (tolerated stay) granted in an EU Member State does not obstruct the assessment of an asylum claim by the court

3 April 2018 | Judicial Body: France: Cour nationale du droit d'asile | Topic(s): Humanitarian protection (including tolerated stay) | Countries: France - Poland - Russian Federation

situation in region and Kabul is likely to be qualified as situation of indiscriminate violence resulting from an internal armed conflict in light of subsidiary protection. In these conditions, the prefect had erred in applying the law by deciding that, instead of authorising to register the application in France, the applicant be transferred to Finland where this country had already rejected the asylum application, expelled and issue an entry ban against the applicant.

13 March 2018 | Judicial Body: France: Cour administrative | Legal Instrument: 1951 Refugee Convention | Topic(s): Generalized violence - Internal armed conflict - Refoulement | Countries: Afghanistan - Finland - France