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*Law of Aliens

Published on October 10th, 2017 | by Alexandra Katsarou

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SUMMARY: French Administrative Court of Appeal- 16NT01785/29.09.2017-Reject of Alien’s Residence Permit-Request of Decisions’ Annulment

Keywords: Superficial examination of the residence permit as a sick alien by the prefect- the prefect was affected in a way that breaches his-her competence by the opinion issued by the doctor of the regional health agency-Article L.313-11 and R. 313-22 of the Code of Entry of Aliens and the Right to Asylum- the Court rejected the application submitted by the claimant

No of Decision: 16NT01785/29 of September 2017

Court: French Administrative Court of Appeal

Claimant: M.D…B…

Legal Framework:

1) Article L. 313-11 of the Code of Entry and Residence of Aliens and the Right to Asylum

«Except of the cases that the presence of an alien constitutes a threat for the public order, the temporary residence permit mentioned as “personal and family life” is delivered to (…) 11 An alien, who resides in France and whose health situation requires a medical treatment that lacks from his-her country, apart from the exceptional humanitarian circumstances assessed by the administrative authority, after receiving the opinion of the general director of the regional health agency without the requirement mentioned in article L.311-7. The decision concerning the issue of an alien’s permit is taken by the administrative authority,after consultation with the doctor of regional agency of health, chosen by the general director of the agency .»

2) Article R. 313-22 of the Code of Entry and Residence of Aliens and the Right to Asylum

«The prefect may issue the temporary residence permit on the basis of a notice delivered by a doctor of the public health department with regard to the place of residence of the person concerned.(….) The decision concerning the residence permit  may be issued according to the conditions laid down by the order of the minister who is in charge of immigration and the minister charged for health, on the basis of a medical report drawn up by a doctor or a hospital practitioner and of the available information concerning the existence of treatment in the patient’s country of origin.»

Factual Framework:

The claimant submitted an application (27-05-2016) to the Administrative Court of Appeal, by which he requested the annulment of the 16th of June and 5th of October 2015 decisions. Concerning these decisions, the prefect denied the delivery of a residence permit to him. The claimant requested: a) the annulment of the 24th of March 2016 decision of the Administrative Court of Orleans, by which it rejected his claims concerning the annulment of Prefect’s (Loir et Chair) decisions (16th of June- 5th of October 2015) b) the annulment of the decisions mentioned above, c) the reexamination concerning his application of residence permit within 15 days from the notification of the decision, d) the payment of 2.000 euro sum by the State, according to the provisions of article L.761-1 of the Code of Administrative Justice and of Article 37 of the 10th of July 1991 Law, e) the payment by the State of the costs of pleading in the amount of 13 euro.

Decision:

According to the decree of 9 November 2011, which is issued for the purpose of the provisions’ L. 313-11 and R. 313-22 of the Code of Entry and Residence of Aliens and the Right to Asylum application, it is stipulated that  the doctor or the medical practitioner may send to the doctor of the regional health agency a medical  report specifying the diagnosis of the pathology, the treatment followed and it’s predictable duration and progress concerning the medical information given by the person concerned, or any other doctor at the claimant’s request and the necessary medical examinations. Afterwards, the physician of the regional agency issues a notice specifying the exact medical condition of the person concerned, the possibility and the duration of an appropriate medical treatment in his-her country and he- she indicates whether the alien’s health condition enables him-her to travel safely to his-her country of origin. Consequently, the administrative authority has the right to reject the issue of an alien’s residence permit  that is  requested  under the requisitions of article L.313-11 of the Code of Entry and Residence of Aliens and the Right to Asylum, in case that it is proved that this decision is not possible to have negative consequences in the medical situation of the person concerned and that there is the possibility of an appropriate medical treatment in the alien’s country of origin.

Furthermore, the claimant does not declare that he let the prefect know, during the examination of his application for residence permit, about the necessary medical information concerning  his health situation and which would not have been brought to the attention of the regional health agency’s physician. In addition, the medical confidentiality prohibited the doctor from disclosing information about the pathology of the person concerned, the nature of his medical treatment and the healthcare system of his country of origin. The medical notice of 1st of June 2015 and of  9th of September of the same year gave the prefect of Loir-et-Cher sufficient evidence concerning the pathology of the disease and the possibility for the person concerned to follow an appropriate treatment in the event of his return to his country of origin. Consequently, there is no evidence that the prefect was affected in a way that breaches his-her competence, by the opinion issued by the regional health agency’s doctor. As a result, the Court estimated that all the claims submitted by the claimant must be rejected.

Cour Administrative d’ Appel de Nantes/ CAA de Nantes here…





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