Author
General (scope, criteria, time limits)
As of 2024, this will be affected by the provisions of the new asylum law: see Changes to the legal framework: new law of 26 January 2024
The law provides OFPRA with the possibility to decide on the admissibility of asylum applications lodged before it.[1] Claims are deemed inadmissible in the following cases:
- The asylum seeker already benefits from an effective international protection status (refugee status or subsidiary protection) in another EU Member State;
- The asylum seeker has already been granted refugee status and benefits from an effective protection in another third country and they can effectively be readmitted there; or
- When, following a preliminary examination carried out in accordance with the procedure defined in Article L. 531-42, it appears that this request does not meet the conditions provided for in the same article (new elements that significantly increase the probability that the applicant meets the conditions required to qualify for protection).
The applicability of these grounds may be discovered by OFPRA upon lodging of the application or later, during the interview or during investigations post-interview. However, there is a specific time limit in the case of Subsequent Applications: a preliminary examination of their admissibility has to be conducted within 8 days of registration.[2]
The possibility to determine a claim inadmissible also applies to claims introduced at the border or in detention centres.
OFPRA never takes decisions confirming admissibility; only inadmissibility decisions. Decisions have to be motivated and notified in writing to the asylum seeker within 1 month after the claim has been introduced or, if grounded on elements revealed during the interview, within 1 month after the interview. However, the law sets no consequence in case those time-limits are not complied with by OFPRA. As a matter of fact, they are very unevenly implemented in practice.[3]
The notification of the decision includes procedural aspects and the time period to introduce an appeal to the CNDA to challenge the inadmissibility decision.
In 2022, OFPRA issued 14,250 (13,000 in 2021) inadmissibility decisions.[4]
Personal interview
Asylum seekers whose claim is deemed inadmissible on ground of the existence of an international protection in an EU Member State or refugee status in a third country, are invited to a personal interview.
The interview in the case of Subsequent Applications, which represent the largest part of inadmissibility cases, is not required by law.
Appeal
There is a 1-month time limit for introducing an appeal before the CNDA.
The appeal is not suspensive in inadmissibility cases based on the existence of an international protection in an EU Member State or refugee status in a third country.[5] However, the appeal is also not automatically suspensive in inadmissibility cases concerning subsequent applications.[6] Similarly to the Accelerated Procedure: Appeal, it is examined by a single judge at the CNDA within 5 weeks.
In cases of a negative decision in detention or at the border, specific procedures are applicable.
Legal assistance
The automatic right to legal aid at second instance (see Regular Procedure: Legal Assistance) is also applicable to inadmissible claims.
Suspension of returns for beneficiaries of protection in another Member State
No EU country is affected by a general suspension of return for beneficiaries of protection, but a case-by-case examination may lead to such a suspension.
In May 2023, CNDA ruled on the question of the necessary elements to confirm the existence of international protection obtained in another EU Member State for the purposes of the application of article L. 531-32 of the CESEDA.[7] The court held that in the absence of an official document from the authorities of the Member State who granted protection, proving that protection was granted, the existence of such protection can be ascertained on the basis of consistent evidence and indications from the case file, and relying on comparisons of the fingerprints taken from the applicant at the time of submitting his application in France, in accordance with Article 9 (1) of the Dublin III Regulation, with those taken previously in another Member State. The court further added that the applicant’s statements on the granting of international protection must also be considered. However, in this case, the Court concluded that there were no systematic and general deficiencies in Hungary that would reach the particularly high level of severity in the reception of applicants and beneficiaries of protection.
Recently, several decisions have recognised the lack of protection for refugees in Greece[8] (with exceptions)[9] or in Malta.[10]
[1] Article L. 531-32 Ceseda.
[2] Article R. 531-38 Ceseda.
[3] Practice-informed observations by Forum Réfugiés and partners, January 2024.
[4] OFPRA, 2022 Activity report, July 2023, available in French at: https://bit.ly/49eglrk, 66.
[5] Article L. 542-2 Ceseda.
[6] Article L. 542-2 Ceseda.
[7] CNDA, 28 March 2023, M. M. n°20031552 C +.
[8] CNDA, 2 May 2022, CNDA, 23 September 2022, n°22025059; CNDA, 14 October 2022, n° 22030088.
[9] Conseil d’Etat, 30 January 2024, n°457524.
[10] CNDA,18 February 2022, n° 21064690.