Author
An asylum application in France may be made:
- On French territory;
- At the border, in case the asylum seeker does not have valid travel documents to enter the territory, including when they are placed in a waiting zone. In this case the person makes an application for admission to the territory on asylum grounds. If their request is granted, they will make a formal asylum application once they have formally entered, as in the first scenario;
- From an administrative detention centre, in case the person is already being detained for the purpose of removal.
Registration and lodging: In order to lodge an asylum application on French territory, asylum seekers must first present themselves to the locally competent orientation platform (Structure de premier accueil pour demandeurs d’asile, SPADA) whose task is to centralise intentions to apply for asylum and to give asylum seekers appointments to the “single desk” (guichet unique pour demandeur d’asile, GUDA) of the Prefecture. At the single desk their asylum claim is registered and they are granted an asylum claim certificate.[1] This certificate is their temporary residence permit. Intentions to lodge expressed before other authorities have no effect under French law despite EU law on the matter. On a general basis, under the French law, civil servants have the obligation to orient the person to the relevant organization when they are not competent to deal with a request.[2] In this case, the French authorities should orient asylum seekers to SPADA.The certificate does not allow asylum seekers to travel to other Member States.
If this certificate is delivered, the person enters into the asylum procedure and has to complete their application form in French and send it to OFPRA within a 21-calendar day period (i.e., lodge their asylum application), whether they are under regular or accelerated procedures.
Asylum seekers under a Dublin procedure also receive an asylum claim certificate but which specifies that they are under a Dublin transfer procedure. It serves as temporary residence permit until their transfer. As such, they are not allowed to lodge their application with OFPRA.
The certificate is not delivered to asylum seekers who register a claim at the border or from a detention centre. In addition, the Prefecture may refuse to grant an asylum claim certificate for two reasons, thus in practice banning the foreign national from remaining on French territory as they then do not have a temporary residence permit:[3]
- The foreign national introduces a subsequent application after final rejection of their first subsequent application; or
- The foreign national is subject to a final decision of extradition towards another country than their country of origin, or they are subject to a European Arrest Warrant or an arrest warrant issued by the International Criminal Court.
First instance procedure: This includes several different procedures. The placement under an accelerated procedure does not imply a refusal to grant an asylum claim certificate. There are different grounds for channelling a claim under the accelerated procedure. In particular, OFPRA has to process asylum claims under the accelerated procedure where the applicant: (a) comes from a safe country of origin; or (b) lodges a subsequent application which is not inadmissible. Accelerated procedure implies a shorter procedure before OFPRA and CNDA, end of the right to stay in the country after first instance decision (except if it is allowed by a judge) and reduced procedural guarantees at appeal stage (see Accelerated Procedure). The Prefecture also channels asylum claims under the accelerated procedure in several cases provided by law.
An accelerated procedure entails that the person has 21 calendar days to lodge their application with OFPRA and that the latter has, in theory, 15 days to examine and decide on the case. The deadlines are even more limited for both for the asylum seeker and OFPRA if the person is held in administrative detention. The accelerated procedure does not entail lower social rights than under the regular procedure. However, following the 2018 reform, the law provides for the termination of reception conditions for certain categories of asylum seekers whose claims are rejected at first instance in the accelerated procedure, before their appeal. Under normal procedure, asylum seekers still have 21 calendar days to lodge their application but OFPRA has 6 months to examine and decide on their case.
French legislation provides for systematic personal interviews of applicants at first instance, except if OFPRA is about to take a positive decision or if the asylum seeker’s medical situation prevents them from attending the interview. All personal interviews are conducted by OFPRA. Asylum seekers can be accompanied to their interview by a third person (e.g. a lawyer or member of an accredited NGO). This third person cannot intervene during the interview but may formulate remarks at the end of the interview. This provision also applies to claims introduced at the border and from detention. After the asylum seeker and potential third person have been heard, the caseworker writes an account and a draft decision. The caseworker’s decision must be signed and validated by the Head of section, but in practice around one-third of caseworkers, who have significant professional experience, are allowed to sign off on their own decisions.
Appeal: The CNDA is the specialised Administrative Court handling appeals against all administrative decisions of the Director General of OFPRA related to an asylum application. This appeal must be lodged within 1 month after the notification of OFPRA’s decision to the applicant. The appeal has automatic suspensive effect for all applicants in the regular procedure, and for those in the accelerated procedure who do not fall under the safe country of origin concept, subsequent application, or threat to public order. Appeals have no suspensive effect if they concern an inadmissibility decision or asylum claims introduced from detention (see Registration). The CNDA examines the appeal on facts and points of law. It can annul the first instance decision, and therefore grant subsidiary protection status or refugee status, or confirm the negative decision of OFPRA. In some special cases, if the procedural guarantees of the personal interview have not been respected by OFPRA, it can also send the case back to OFPRA for re-examination.
An onward appeal before the Council of State can be lodged within 2 months after notification of the CNDA decision. The Council of State does not review the facts of the case, but only examines points of law such as compliance with procedural rules and the correct application of the law by the CNDA. If the Council of State annuls the decision, it refers it to the CNDA to decide again on the merits of the case, but it may also decide to rule itself for good on the granting or refusal of protection. The appeal before the Council of State has no suspensive effect on a removal order issued by the Prefecture following a negative decision of the CNDA.
Border procedure: A specific border procedure to request an admission to the territory on asylum grounds is provided by French legislation for persons arriving on French territory through airports or harbours. The Asylum at the Border Unit interviews the asylum seekers and formulates a binding opinion that is communicated to the Ministry of Interior. If OFPRA issues a positive opinion, the Ministry has no choice but to authorise the entry on the French territory, except on grounds of threat to national security. This interview is conducted to check whether the applicant’s claim is not manifestly unfounded. The concept of “manifestly unfounded” claims is described in the law and concerns claims that are “irrelevant” or “lacking any credibility”.
If the asylum application is not considered to be manifestly unfounded, the foreign national is authorised to enter French territory and is given an 8-day temporary visa. Within this time frame, the asylum seeker has to report to a SPADA to obtain an appointment at the single desk. The Prefecture will examine whether to grant the person an asylum claim certificate and, if so, will channel the application into the appropriate procedure. OFPRA then processes the asylum application as any other asylum application lodged on the territory. If the asylum application is considered manifestly unfounded or inadmissible or to be the responsibility of another Member State, the Ministry of Interior refuses to grant entry to the foreigner with a reasoned decision. The person can lodge an appeal against this decision before the locally competent Administrative Court within a 48-hour deadline. If this appeal fails, the foreigner can be expelled from the country.
Linking asylum and return: When the rejection of an asylum claim is definitive, a separate return decision is notified by the prefecture. This link is not automatic and sometimes it can take many days or weeks before the notification of the return decision.
[1] Conditions for the certification to be delivered and renewed are described in the Decree n. 2015-1166 of 21 September 2015 of the Ministry of Interior.
[2] Notably, regarding the OFII, police or prison authorities, article R.521.4 Ceseda.
[3] Article L.521-7 Ceseda.