Identification

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Identification

Article L. 522-1 Ceseda refers to the identification of vulnerability, in particular (article L. 522-3 Ceseda) of children, unaccompanied children, disabled persons, the elderly, pregnant women, single parents with minor children, victims of trafficking, persons with serious illness, persons with mental disorders, and victims of torture, rape and other forms of psychological, physical or sexual violence, such as victims of female genital mutilation.

Screening of vulnerability

OFII is responsible for identifying vulnerabilities and special needs of asylum seekers.[1] In order to do so, OFII has to proceed, within a “reasonable” timeframe, to an evaluation of vulnerability. This evaluation, that concerns all asylum seekers, takes the form of an interview based on a questionnaire.[2] The interview follows the registration of their claim in the Prefectures. The objective is thus to determine whether the person has special reception and procedural needs. Any needs emerging or revealed later on during the asylum procedure are to be taken into account.

The assessment of vulnerability particularly concerns the categories listed in Article L. 522-3 Ceseda.-

The assessment is carried out by OFII officers specifically trained on vulnerability assessments and in the identification of special needs. However, the publication of the questionnaire designed for the vulnerability assessment reveals that only objective vulnerability is assessed during the interview with OFII upon registration of the application at the GUDA,[3] and only those limitedly listed. No vulnerability linked to the asylum claim shall be discussed, it is only for the purposes of the reception conditions. Therefore, this vulnerability assessment has a limited impact on the early identification of less visible vulnerabilities and procedural needs; e.g., in the case of victims of torture and of physical, mental or sexual violence as well as victims of human trafficking.

The law provides that information attesting to a particular situation of vulnerability is transmitted, after agreement of the asylum seeker, by OFII to OFPRA.[4] However, in practice, the (limited) identification of vulnerabilities carried out by the OFII mainly aims to adapt reception conditions. The taking into account of vulnerabilities in the asylum procedure is not regulated by law, the OFPRA therefore relies mainly on the elements which may emerge from the asylum claim and/or the reports made by accompanying persons to adapt the procedure.

As it was clear vulnerabilities were not fully taken into account,[5] a “national plan for the reception of asylum seekers and the integration of refugees for 2021-2023″ published on 18 December 2020 aimed to remedy this. It includes measures aimed at identifying vulnerabilities at an early stage and strengthening their management.[6] This national plan mentions the publication of an “action plan for the care of the most vulnerable asylum seekers and beneficiaries of protection” in January 2021 in order to “guide the actions carried out jointly by State services and operators for the coming years”. This action plan was published in May 2021.[7] It foresees two main objectives: better identify and better protect vulnerable people. The plan breaks down these two axes into ten actions:

1. Establishment of a “health appointment” as soon as the asylum application is registered;
2. Creation of a network of “vulnerability referents” among asylum actors, to develop coordination and information sharing;
3. Development of training in identifying vulnerabilities
4. Implementation of early identification of vulnerabilities from the start of the procedure, in particular by the first reception structures (SPADA);
5. Development of targeted information campaigns aimed at vulnerable users;
6. Development of specialised accommodation places for victims of trafficking, women victims of violence, asylum seekers and vulnerable LGBTI refugees, and people with reduced mobility;
7. Development of collaboration and information of health professionals on the management of psycho-trauma;
8. Medical presence in each accommodation centre;
9. Access to the asylum procedure for unaccompanied minors through enhanced cooperation and a specific registration procedure;
10. Strengthening of medical care for resettled refugees.

While this action plan was largely welcomed by civil society organisations as it contains notable advances, some also criticised the absence of specific budget. The recommendations mainly refer to the coordination and pooling from existing resources, which are often insufficient. Only a few points have been implemented since May 2021, such as the creation of a network of “vulnerability referents” (point 2), the development of trainings provided by national authorities to NGOs and public stakeholders (point 3) and the development of specialised accommodation places (point 6). They have proven to be effective in practice.

During the interview with OFII, the asylum seeker is informed that they can benefit from a free medical examination. Information collected by OFII on the vulnerability of an applicant, whether during the initial interview or the optional free medical examination, is sent to OFPRA, with the consent of the applicant.

This lack of interview or of a proper interview is a persisting issue. This interview is meant to offer reception conditions suitable given the asylum seekers’ vulnerability. It may lead some asylum seekers being accommodated into centres that do not correspond to their specific needs. For example, it has been reported that some female asylum seekers, victims of human trafficking or sexual violence, have been housed in centres mainly occupied by single men.[8]

It is possible to notify OFII of any vulnerability element identified after the “interview” whether it has been conducted or not. When the asylum seekers benefit from legal and social assistance, from SPADA for example, it is possible for them to address OFII with a medical certificate. However, for asylum seekers living in camps or on the streets, it is particularly difficult to have their vulnerability taken into account.

For asylum applications made at the border or in detention, OFPRA has developed a system for the signalling of vulnerabilities in places of detention (see Prioritisation and exemption from special procedures).

Age assessment of unaccompanied children

In France, age assessment is not conducted within the framework of the asylum procedure but in a separate procedure, as a prerequisite to benefitting from the Childcare Protection system. This procedure is handled locally by each “département”. The age assessment procedure and criteria are detailed in a legal framework of 2016,[9] which establishes the elements to be considered to determine the applicant’s minority based on ‘social evaluation’. The ground rules are as follows:

• The minor has to be informed of the objectives of the evaluation and its potential effects;
• This assessment has to be conducted in a multidisciplinary approach;
• The assessor must have strong knowledge of migratory routes, the situation in the country of origin, childhood psychology and children rights;
• Particular attention must be paid to potential cases of human trafficking;
• The interview must be conducted in a language spoken by the interviewee; and
• The outcome of the interview must be held in a written decision notified to the interviewee, and mention the legal remedies against it.

In theory, this process aims to organize entry into child protection and is not directly linked to asylum system. People could introduce asylum claim as minors despite not being recognised as such under the child protection service: however the non-recognition of a minority by child protection often leads to significant practical difficulties in appointing a temporary legal representative (administrateur ad hoc), which can delay the processing of the application by the asylum authorities.

In 2022, 14,782 persons were protected as unaccompanied minors by Childcare protection systems[10] but only 980 unaccompanied children applied for asylum.[11]

Methods for assessing age

In practice, bone examinations continue to be implemented even when unaccompanied children possess civil status documents. According to some stakeholders, some young people, in particular those above 16, are subjected to several medical examinations until it can be established that they are 18. However, these practices have decreased since the legal consolidation of the social assessment that started in 2016 and the development of protective case law.[12]

On 21 December 2018, the Court of Cassation referred a preliminary question to the Constitutional Court on the constitutionality of bone examinations for age assessment. On 21 March 2019, the French Constitutional Court ruled that bone tests determining the age of young migrants are not unconstitutional. The case concerned a young Guinean, Adama. S, who declared to be 15 years old upon his arrival in France in 2016. A bone test concluded that his age was between 20 and 30 years. With the support of several civil society organisations, he brought the case before the Constitutional Court. The applicant claimed that the radiological examination of bones violated the principle of the ‘best interests of the child’. Due to its margin of error it led to unaccompanied minors being excluded from the beneficial provisions designed to protect them. Although the Court confirmed the constitutional character of the principle of the ‘best interest of the child’, it stated that the existence of a margin of error does not make the use of the test unconstitutional.[13]

Since 2016, age assessment is mainly based on ‘social evaluation”.[14]

In 2019, a guide for the services in charge of age assessments was published by the authorities, in order to harmonise current practices of social evaluation.[15] In practice, age assessment is still carried out in a variety of ways depending on the territory, with severe shortcomings in some places.[16] In a report published in February 2022, the Ombudsman again regretted that bone age examinations were not prohibited by law.[17] In 2023, the UN Committee of the rights of the Child denounced some shortcomings of the current ‘social evaluation’ procedure applied in France.[18]

Moreover, Human Rights Watch published a report in 2019 relating to the treatment of unaccompanied children in the French Hautes-Alpes which demonstrated that France continues its practices of flawed age assessment procedures and summary returns of unaccompanied children at the border with Italy.[19] According to the report, the authorities do not comply with international standards and use various justifications to deny children protection. Research by HRW indicates that the flawed age assessment practice is common across the country. The research also testifies to previous reports of summary returns of unaccompanied migrant children by the French border police at the border between Italy and France. In the nine cases examined by HRW French authorities did not comply with the “entry refusal” procedure specific for children. The threat of summary returns pushes children to take ever more dangerous routes across the Alps, increasing the number of injuries and other health risks (see Access to the territory and push backs).[20] Similar situations have been reported at the French-Spanish border in 2021.[21]

Benefit of the doubt

Young people are entitled to the benefit of the doubt in the event that an evaluation cannot establish their exact age.[22]. Once again, practice is not uniform across the country in this regard. In some Départements, assessment services assess very few young individuals as minors while in other Départements, evaluations lead to more positive decisions.[23]

However, young people are rarely given the benefit of the doubt in practice. The State Prosecutor is the authority that decides on an age assessment dispute. In fact, the Prosecutor is responsible for issuing the order to place the child in State care (temporarily or not) and may therefore request additional tests if there is a doubt about their age. Sometimes, the Prosecutor also closes the file with “no further action” without considering other investigations which may in certain cases confirm the person’s minority.

Young people who are not assessed as minors by Départements have the possibility to appeal to the juvenile judge in order to be protected as minors, but during this procedure they will not have access to specialised reception centres that provide adequate care to children. Moreover, while they have the possibility to reach out to emergency and homeless shelters for adults, they cannot be accommodated if they claim to be minors.

In any case, having been determined to be above 18 as a result of an age assessment procedure has a significant impact on the young asylum seeker’s ability to benefit from fundamental guarantees. The age assessment procedure does not entail the granting of new documentation. This means that the person might be considered alternatively as an adult or a child by various institutions. Indeed, asylum authorities are not bound by the Childcare Protection services’ assessment. But, if Childcare Protection considers the asylum seeker is above 18, it will not provide for any legal representative for the person, whereas such representation is required for the registration of an asylum application. This may hinder the young person from submitting an asylum claim; in case a minor without legal representative presents themselves in Prefecture to register an asylum claim, the Prefecture has to refer the case to the Prosecutor in order that for an ad hoc administrator to be appointed (see Legal Representation of Unaccompanied Children). Yet such a legal representative is sometimes not appointed, if the Prosecutor relies on the result of the age assessment procedure. In such cases, the person cannot lodge their claim before turning 18 or OFPRA suspends the processing of the asylum claim until they turn 18.[24]

Conversely, in other situations, the child manages to register their asylum application with an ad hoc administrator, with minority being recognised by the Prosecutor at that stage, but is then recognised as adult after the evaluation. In this case, they can proceed with the asylum claim as a child but cannot benefit from any specific reception conditions either as an unaccompanied child or as an adult.

No statistics are available on the use of age assessment nationwide. A total of 14,782 young persons reported as unaccompanied minors were integrated in the national mechanism for childcare protection in 2022, a 31% increase compared to 11,315 in 2021.[25]

The 2018 asylum and immigration reform provided for the creation of an automated data processing system for unaccompanied children, aiming at “better guaranteeing child protection and at the prevention of illegal entry and stay of foreigners in France”.[26] A Decree of 30 January 2019 further detailed this database and the evaluation process for unaccompanied children.[27] As a result, all young persons applying for support as unaccompanied children are from now on required to register at Prefectures their personal data, including fingerprints, photograph and documents, while Childcare Protection may ask the Prefecture for help in the evaluation process as regards the identity of a young person. This new system is applied very differently depending on the competent department. In certain circumstances it deteriorated the evaluation system by placing increased attention to control rather than protection needs, thus resulting in confusion for the young migrants and an unfavourable context for an assessment in confidence,[28] despite the guarantees set by the Constitutional court in July 2019: namely that tests must be decided by the judicial authority, and ordered only in the absence of valid identity documents. If there are doubts on the age, the person concerned, informed in a language they understand, must consent to the test (the refusal itself cannot be enough to prove the majority), taking into account the margin of error surrounding the conclusions of the radiological examination.[29]

^{[1] Article L. 522-1 Ceseda.}

^{[2] A copy of the questionnaire may be found at: https://bit.ly/3A5keQh.}

^{[3] Decree of 23 October 2015 on the questionnaire for vulnerability assessment of asylum seekers; Decree of 17 November 2016 implementing Decree n. 2016-840 of 24 June 2016 on the evaluation of minors temporarily or permanently deprived of family care, available in French at: http://bit.ly/2msmNXw.}

^{[4] Article L.522-4 Ceseda.}

^{[5] See also Forum Réfugiés, ‘Accueil des demandeurs d’asile : les vulnérabilités encore insuffisamment prises en compte’, 10 February 2020, available in French at: https://bit.ly/3d2pNVr.}

^{[6] Ministry of Interior, Schéma national d’accueil des demandeurs d’asile et d’intégration des réfugiés 2021-2023, 18 December 2020, available in French at: https://bit.ly/376rJsl. See also Forum Réfugiés, Schéma national d’accueil : quelles conséquences pour les demandeurs d’asile ?, 12 January 2021, available in French at: https://bit.ly/2Z4TEV9.}

^{[7] Ministère de l’Intérieur, ‘10 actions pour renforcer la prise en charge des demandeurs d’asile et des réfugiés vulnérables’, 28 May 2021, available in French at : https://bit.ly/3ULcZ9Y.}  

^{[8] Practice-informed observations by Forum Réfugiés and partners, January 2024.}

^{[9] Law n. 2016-297 of 14 March 2016 relating to child protection, available in French at: http://bit.ly/2jd6t9b; Decree n. 2016-840 relating to reception and minority assessment conditions of minors temporarily or definitely deprived from the protection of their family, 24 June 2016, available in French at: http://bit.ly/2j01GrO. Order relating to the methods of evaluating people presenting themselves as minors and temporarily or permanently deprived of the protection of their family, 20 November 2019, NOR : SSAA1920987A available in French at : https://bit.ly/3TQYceK.}

^{[10] Ministry of Justice, Mission mineurs non accompagnés:. Online data, available in French at: https://bit.ly/2YLoFgw.}

^{[11] OFPRA, Rapport d’activité 2022, 3 July 2023, available at: https://bit.ly/3IRnyTs.}

^{[12] Practice-informed observations by Forum Réfugiés and partners, January 2024.}

^{[13] Constitutional Court, Decision No 2018-768, 21 March 2019, available in French at: https://bit.ly/2ISAfiL.}

^{[14] Law n. 2016-297 of 14 March 2016 relating to child protection, available in French at: http://bit.ly/2jd6t9b; Decree n. 2016-840 relating to reception and minority assessment conditions of minors temporarily or definitely deprived from the protection of their family, 24 June 2016, available in French at: http://bit.ly/2j01GrO. Order relating to the methods of evaluating people presenting themselves as minors and temporarily or permanently deprived of the protection of their family, 20 November 2019, NOR : SSAA1920987A available in French at : https://bit.ly/3TQYceK.}

^{[15] Guide de bonnes pratiques en matière d’évaluation de la minorité et de l’isolement, December 2019, available in French at: https://bit.ly/37WQYeM.}

^{[16] See for example : Défenseur des droits, ‘Décision No. 2021-070’, 17 March 2021, available in French at: https://bit.ly/3uLbETI.}

^{[17] Défenseur des droits, ‘Les mineurs non accompagnés au regard du droit’, February 2022, available in French at: https://bit.ly/36qcvRj. For a complete overview of the situation see also: Infomie, ‘Audition mission inter-inspection’, January 2021, available in French at: https://bit.ly/3s7CrcL.}

^{[18] CRC, Views adopted by the Committee under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning communication No. 130/2020*, 6 March 2023, https://bit.ly/40Sm2XS.}

^{[19] Human Rights Watch, Subject to Whim – The Treatment of Unaccompanied Migrant Children in the French Hautes-Alpes, 5 September 2019, available at: https://bit.ly/395iBTk.}

^{[20] ECRE, ‘France: Report documents continued denial of rights to migrant children’, 5 September 2019, available at: https://bit.ly/2S3hldx.}

^{[21] See for example : ANAFE, ‘L’Etat français renvoie illégalement un enfant à la frontière franco-espagnole’, 10 February 2021, available in French at: https://bit.ly/34S0yDO.}

^{[22] Order relating to the methods of evaluating people presenting themselves as minors and temporarily or permanently deprived of the protection of their family, 20 November 2019, NOR: SSAA1920987A available in French at : https://bit.ly/3TQYceK.}

^{[23] See e.g. Coordination nationale jeunes exiles en dangers, Mineurs non accompagné.es refuse.es ou en recours de minorité : recensement national du 20/03/2024, 9 April 2024, available in French at: https://bit.ly/4aFtiMG.}

^{[24] Very common practice observed by Forum Réfugiés and partners, January 2024.}

^{[25] Ministry of Justice, Mission mineurs non accompagnés:. Online data, available in French at: https://bit.ly/2YLoFgw.}

^{[26] Article L. 142-5 Ceseda.}

^{[27] Decree n. 2019-57 of 30 January 2019 on methods of evaluation of persons reporting as unaccompanied minors and authorising the creation of a personal information data-file concerning those persons.}

^{[28] Updated information on how this system is implemented are provided, department by department, by the NGO InfoMIE. The website is accessible in French at: https://bit.ly/37WGXOI.}

^{[29] Constitutional Court, Decision No. 2019-797, 26 July 2019, available in French at: https://bit.ly/2S9xRYe.}