Special procedural guarantees

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Throughout the asylum procedure, OFPRA is competent for adopting specific procedural safeguards pertaining to an asylum seeker’s specific needs or vulnerability.[1]

Adequate support during the interview

The Ceseda does not define the notion of “adequate support” contained in Article 24(3) of the recast Asylum Procedures Directive. However, specific procedural safeguards relating to the interview include:

• The presence of a third person during the interview with the OFPRA protection officer.[2] Even though this provision does not specifically concern vulnerable applicants, it can be particularly relevant and useful for these categories of asylum seekers;
• The possibility for an asylum seeker to ask that the interview be conducted by a protection officer and with an interpreter of a specific gender. This request has to be motivated and manifestly founded by the difficulty to express the grounds for their claim in presence of people from a certain gender (especially in situations of sexual violence);[3]
• The presence of a mental health professional for asylum seekers suffering from severe mental disease or disorder.[4]

The law maintains the possibility for the asylum seeker to request a closed-door audience with the CNDA. This decision can also be taken by the President of the court session if circumstances so require.[5]

OFPRA has set up 5 thematic groups (groupes de référents thématiques), around the following topics: sexual orientation and gender identity; unaccompanied children; torture; trafficking in human beings; and violence against women.[6] The thematic groups follow internal guidelines developed by the référents and revised every year. OFPRA has also established a position of  Policy officer in charge of Vulnerability and Quality as of 2016.

These officials follow specialised training on the specific issues they deal with:[7]

• Officers dealing with claims from unaccompanied children must be specifically trained and certified. They are trained on the particularities of asylum claims lodged by young individuals and also have to attend a mandatory training on techniques for collecting personal stories, using the EASO training module on Interviewing Children;
• A protection officer may interview an applicant presenting other vulnerabilities. In such cases, officers are trained based on internal training packs which refer to external sources e.g., TRACKS project or GRETA report for victims of trafficking.
• From 2013 to 2023, Forum réfugiés – Cosi and the Belgian NGO Ulysse conducted several 2-day trainings for OFPRA protection officers on victims of torture with two main objectives: helping them to take into account the difficulties asylum seekers may face when they have to share their story after traumatic events and providing tools to protection officers for handling these situations, including testimonies recounting painful events during the interview process. It is particularly important as the lack of sensitive approaches to vulnerable applicants has further negative consequences. For instance, it has been raised that in some cases, no special precautions have been taken in the formulation of a negative answer. According to a social worker from Forum réfugiés – Cosi, for instance, some negative decisions mention the fact that the claimant showed no emotion when recalling the rape they had been subjected to or that the claimant seemed distant from the recollection of the abuses they were describing. Asylum seekers can be extremely distressed when they see such comments.

According to a recent report by the High Council on Equality, OFPRA has made notable improvements in terms of sensitivity and professionalism vis-à-vis asylum claims lodged by women.[8] In addition, by the end of 2019, more than 9,000 persons and 20,900 by the end of 2023[9] were under OFPRA protection on grounds of risk of female genital mutilation (FGM).[10]

According to CNDA, “new presidents and assessors as well as trainers are systematically trained in the specificities of asylum requests from vulnerable people, in particular people who have suffered discrimination or violence because of their gender”.[11] However, trainings mentioned concern only one type of vulnerability (gender-based violence).

Prioritisation and exemption from special procedures

OFPRA can decide to prioritise the processing of a claim from a vulnerable applicant having special reception or procedural needs.

Similarly, OFPRA can decide not to process the claim under the Accelerated Procedure on the basis of vulnerability or specific needs of the applicant. Yet, no more than 24 claims (0.06%) were exempted from the accelerated procedure out of a total of 37,759 claims under accelerated procedure in 2018.[12] An improvement was noted in 2019, when OFPRA rechannelled 206 cases into the regular procedure out of a total of 40,677 cases processed in the accelerated procedure.[13] More recent statistics were not available at the time of writing of this report.

In addition, three grounds for placing an asylum seeker under the accelerated procedure may not applied to unaccompanied children: (a) use of false identity or travel documents or false information; (b) reasons unrelated to international protection; and (c) manifestly contradictory or incoherent information, or statements that are clearly contradicted by country of origin information.[14]

Exemption from the border procedure

Similarly, in the Border Procedure, OFPRA can consider that an asylum seeker in a waiting zone requires specific procedural safeguards and thus terminate the detention.[15] However, the law does not completely forbid the examination of vulnerable asylum seekers’ claims under border procedures.

Unaccompanied children are also subject to the border procedure in waiting zones,[16] albeit in a more restrictive way than adults. According to the law, an unaccompanied child can be held in a waiting zone only under exceptional circumstances listed in the law:[17]

1. The unaccompanied child originates from a Safe Country of Origin;
2. The unaccompanied child introduces a subsequent application deemed inadmissible;
3. The asylum claim is based on falsified identity or travel documents; or
4. The presence of the unaccompanied minor in France constitutes a serious threat to public order, public safety or national security.

In practice, since the majority of unaccompanied children arriving at the border hold false documents, the criterion of falsified identity or travel documents is widely applied as a ground to conduct a border procedure for this category of asylum seekers.[18] 56,8% of unaccompanied minors were granted entry in 2022, 60% in 2021 and 62.5% in 2020. This raises important concerns, taking into consideration that the border procedure should in principle only be applied exceptionally to unaccompanied minors but in practice UAM are often present in these places.[19]

OFPRA further developed a system to report vulnerabilities in waiting zones. Any person authorised to be present in waiting zones, including the NGOs accredited to that effect,[20] can alert OFPRA of the existence of vulnerabilities through a functional email address.[21] When a person is identified as vulnerable during the border procedure, OFPRA may request their release from the waiting zone.[22] This is marginally used in practice, as only a few referrals were made in recent years and because of the limited NGO presence (see legal assistance). In 2016, only 5 persons were released from the waiting zones due to their vulnerability;[23] and none in 2017.[24] More recent data are not available.

Overall, given the tight deadlines of the border procedure, which require OFPRA to issue an opinion to the Ministry of Interior within two working days, it is unlikely that vulnerable asylum seekers are able to benefit from “sufficient time” to put forward their claim. Moreover, practice suggests that applicants are not always released from waiting zones, even in cases where their vulnerability is reported by NGOs. The vulnerability of an 8-months pregnant woman was reported by Anafé to OFPRA in 2020, but she continued to be held in the transit zone. She further had to stand for an hour during the interview, as the latter was conducted through a wall mounted telephone.[25]

^{[1] Article L.531-10 Ceseda.}

^{[2] Article L. 531-15 Ceseda.}

^{[3] Article L. 531-17 Ceseda.}

^{[4] Article L. 531-18 Ceseda.}

^{[5] Article L. 532-11 Ceseda.}

^{[6] OFPRA, ‘Organisation – Les divisions d’appui’, available in French at: https://bit.ly/3GJLhUW.}

^{[7] OFPRA, Guide des procedures à l’OFPRA, December 2022, available in French at: https://bit.ly/4cRUUzF.}

^{[8] Haut-Conseil à l’Egalité, Situation des femmes demandeuses d’asile en France après l’adoption de la loi portant réforme du droit d’asile, 18 December 2017, available in French at: http://bit.ly/2mWvoBM, 25.}

^{[9] Information received from OFPRA on 16 May 2024.}

^{[10] OFPRA, ‘Les premières données de l’asile 2019 à l’OFPRA’, 21 January 2020, no longer available online.}

^{[11] CNDA, 2023 Activity report, 31 January 2024, available in French at : https://bit.ly/3xeY7sM, 64.}

^{[12] OFPRA, 2018 Activity report, 2019, available in French at: https://bit.ly/3ohjNji, 21.}

^{[13] OFPRA, 2019 Activity report, 2020, available in French at: https://bit.ly/3A1awhO, 22.}

^{[14] Article L. 531-30 Ceseda.}

^{[15] Article L. 351-3 Ceseda.}

^{[16] For detailed additional information on the risks for children at borders, see Anafé, Brève 2016 – Mineurs isolés en zone d’attente : droits en péril aux frontières françaises, 2 May 2017, available in French at: http://bit.ly/2CZGtLP; UNICEF, ‘Enfants non accompagnés : la protection de l’enfance doit s’exercer aussi à la frontière franco-italienne’, 13 December 2017, available in French at: http://bit.ly/2pXsgoG.}

^{[17] Article L. 351-2 Ceseda.}

^{[18] Practice-informed observations by Forum Réfugiés and partners, January 2024.}

^{[19] See for example : ANAFE, Publication on Twitter, 25 February 2022; Publication on 23 June 2021.}

^{[20] Article L. 343-6 Ceseda.}

^{[21] ECRE/AIDA, Access to asylum and detention at France’s borders, June 2018, available at: https://bit.ly/3jEbV53, 22.}

^{[22] Article L. 351-3 Ceseda.}

^{[23] OFPRA, Annual report 2016, 2017, available in French at: https://bit.ly/41DlyWB, 42.}

^{[24] ECRE/AIDA, Access to asylum and detention at France’s borders, June 2018, available at: https://bit.ly/3jEbV53, 20.}

^{[25] Information provided by Anafé, 17 September 2020.}