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*Law of Aliens

Published on November 15th, 2017 | by Alexandra Katsarou

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SUMMARY: French Council of State No 402912/ 6 of November 2017- Rejection of asylum seeker’s application

Keywords: rejection of application for admission to the asylum- Articles L.733-5, R. 733-13 and R. 733-13-1 of the Code of Entry and Residence of Aliens and the Right to Αsylum – the Court accepted the requests submitted by the claimant

No of decision: 402912/ 6 of November 2017

Court: French Council of State

Claimant: Ms…A….B

Legal Framework:

1) Article L.733-5 of the Code of Entry and Residence of Aliens and the Right to Asylum

In the event of an appeal against a decision of the General Director of the French Office for the Protection of Refugees and Stateless persons, the National Court of Asylum, as full judge, decides on the applicant’s right concerning the asylum title, taking into consideration the factual circumstances of which it is aware at the moment of its decision.

2) Article R. 733-13 of the Code of Entry and Residence of Aliens and the Right to Asylum

The president of the court’s formation, or before enlisting the case, the president of the court may set the closing date of the written instruction by an order notified to the parties at least fifteen days before the date. The order is not justified and cannot be appealed. The written instruction can reopen under the same formations. In case that the parties are informed about the date of the hearing at least two months before it, the written directions are closed ten clear days before the day of the hearing. This information, which indicates the closing date of the investigation is conceded to the lawyer appointed on the date of its dispatch, or where appropriate, to the lawyer designated for legal aid on the same date. It does not constitute a notice of hearing within the meaning of Article R. 733- 19. In the event that the first or the second paragraph has not been applied, the written instruction shall be terminated five clear days before the day of the hearing. When it is terminated, only the originals of the previously communicated documents in copy remain admissible until the end of the hearing.

3) Article R. 733-13-1 of the Code of Entry and Residence of Aliens and the Right to Asylum

Concerning the matters that fall in his-her jurisdiction, pursuant to the second paragraph of article L. 731-2,  the president of the court, or the designate president, from the moment of appeal’s registration fixes the date on which the case will be called at the hearing, by a decision, which serves as a hearing. In this case, the written instruction is closed three days before the day of the hearing. The decision predicted in the previous paragraph shall be sent to the parties by any means at least fifteen days before the day on which the case is going to be heard at the hearing. It informs the parties about the closure of the investigation provided by this paragraph : «and according to the provisions of  Article  R. 733-16 of the same code» : The formation of judgment can not be based on elements of information that are external to the file relating to factual circumstances specific concerning the asylum seeker, or his-her story  without having informed the parties. They are informed beforehand when the formation of judgment is likely to base its decision on a means raised ex officio. There is a fixed deadline for the parties to deposit their observations, without hindering the closure of the written instruction.

Factual Framework:

The claimant requested that the National Court of Asylum annuls the decision of 7th October 2015, by which the General Director of the French Office for the Protection of Refugees and Stateless Persons (OFPRA) rejected her application for admission to the asylum. The National Court of Asylum rejected her request at 07 of April 2016. It stated that the claimant should be regarded as possessing the Lebanese nationality, which was her parents’ one, pursuant to Article 1 of Decree 15/S of 19 January 1925. She does not face any fear of persecution in the event of stay or installation in Lebanon and as a result her appeal should be rejected. The claimant requested that the Council of State: 1)annuls this decision of 07th April 2016, 2) charge the State to pay 3.000 euro to her lawyer under articles L.761-1 of the Code of Administrative Justice and 37 of the law of 10 July 1991.

Decision:

The Council of State estimated that since the administration had never disputed that the claimant was only entitled to rely on the Guinean nationality, since she had never examined her situation, concerning her nationality, under the Lebanese laws and the National Court automatically raised the plea, according to which the claimant has Lebanese nationality and also it did not inform the parties before the hearing about the provisions of article R. 733-16 of the Code of Entry and Residence and the Right to Asylum, the impugned decision should be annulled. Finally, the Court decided that the OFRA may pay a sum of 3.000 euro to the lawyer of the claimant with the condition that this company renounces to collect the sum corresponding to the contributory part of State.

Conseil d’ Etat here…

 





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