Article L.744-6 Ceseda refers to the identification of vulnerability, in particular, 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.
The law does not refer to vulnerability on account of sexual orientation of gender identity, therefore this is not taken into account by OFII either.
Screening of vulnerability
OFII is responsible for identifying vulnerabilities and special needs of asylum seekers. 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. 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 being 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. 744-6 Ceseda.
The assessment is carried out by OFII officers specifically trained on vulnerability assessment and identification of special needs. However, the publication of the questionnaire designed for the vulnerability assessment reveals that only objective vulnerability will be assessed during the interview with OFII upon registration of the application at the GUDA. At that stage, no vulnerability linked to the asylum claim shall be discussed. Therefore, the vulnerability assessment has had a limited impact on the early identification of vulnerable persons such as victims of torture and of physical, mental or sexual violence as well as victims of human trafficking.
During the interview with OFII, the asylum seeker is informed that he or she can benefit from a free medical examination. Any information collected by OFII on the vulnerability of an applicant is sent to OFPRA, if the applicant so agrees.
In practice, it has been reported on several occasions that such interviews are not always conducted by OFII. It may happen that OFII indeed receives asylum seekers but does not interview them properly, or conducts short interviews lasting 10-15 minutes, thus not allowing for an in-depth assessment of special needs. The assessment of their vulnerability is, in most cases, based on a vulnerability assessment form used by OFII officers. This situation has been widely reported by stakeholders regardless of the region where they are present. Many of them have also reported the fact that the interview is not conducted with an interpreter. Indeed, the Prefectures do not have a pool of interpreters in situ. Many local NGOs ask volunteering interpreters or fellow nationals for being present at the interview with the asylum seekers.
This lack of interview is really problematic. This interview is meant to propose reception conditions adapted to asylum seekers’ vulnerability. It may lead some asylum seekers to be 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.
In addition, 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 orientation platforms 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 for them 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. Any person authorised to be present in waiting zones, including the NGOs accredited to that effect, can alert OFPRA of the existence of vulnerabilities through a functional email address. This possibility seems marginally used in practice, as only one referral was made in 2017 and none in the first quarter of 2018. Further information on this for the year 2019 was not available at the time of writing.
Age assessment of unaccompanied children
Age assessment is not conducted in the framework of the asylum procedure in France but as a prerequisite to benefitting from the Childcare Protection system. The age assessment procedure and criteria are detailed in a legal framework of 2016, which establishes the elements to be taken into account to determine the applicant’s minority:
- 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.
Methods for assessing age
In practice, bone examinations continue to be implemented even when unaccompanied children possessed 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. In 2016, the Children’s Ombudsman (Défenseur des enfants) introduced recommendations in order to avoid bone examinations and recommended that unaccompanied children shall benefit from all procedural safeguards when the authenticity of the documents proving their minority is questioned. The Ombudsman has recalled this position many times in 2016, holding that the social evaluation had to prevail over the bone examination, in particular when the lack of authenticity of the identity documentation has not been proved.
In his 2017 report, the Ombudsman pointed out that the difficulties persisted: bone examinations are maintained, some unaccompanied children are denied care and evaluation without justification, regardless of whether they have identity documents or not, as refusals are often based on racial profiling. At the same time, other children have to wait without accommodation or in really bad emergency housing during the really long examination of their situations.
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 to Italy. 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 affirms previous reports of summary returns of unaccompanied migrant children by 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.
The priority given to the bone examination, in case of producing identity papers whose authenticity is not properly denied, has been considered has unlawful. If there is no legitimate element to deny the authenticity of such documents, the bone examination must not prevail. The Court of Appeal in Lyon has recalled this principle in 2017 based on a loyal application of the legal instruments adopted in 2016.
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. The hearing took place on 19 March 2019,  and 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, including Gisti, la Cimade, Médecins du monde and the Catholic Relief Service, he brought the case before the Constitutional Court as a preliminary priority question. 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.
In 2019, a guide for services in charge of age assessments has been published by the authorities, in order to harmonise current practices.
Benefit of the doubt
Young people should get the benefit of the doubt in the event that an evaluation cannot establish their exact age, not least as recalled by Article 25(5) of the recast Asylum Procedures Directive. Once again, practice is not uniform across the country. In some Departements, assessment services assess very few young indivduals as minors while in other Departements, the evaluation have led to more positive decisions.
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 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.
In any case, having been determined to be above 18 as a result of an age assessment procedure has a dramatic 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. 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 him or herself 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 his or her claim before turning 18 or OFPRA suspends the processing of the asylum claim until he or she turns 18.
Conversely, in other situations, the child manages to register his or her 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, he or she 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 17,022 young persons reported as unaccompanied minors were integrated in the national mechanism for childcare protection in 2018, a 14% increase from 14,908 in 2017. A report published by two Senators in June 2017 mentioned that 49% of age assessments have resulted in acknowledging the person as a minor. However, this figure is based on incomplete statistics and cannot be considered as reliable. More recent statistics are not available.
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”. A Decree of 30 January 2019 has further detailed this database and the evaluation process for unaccompanied children. 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 unfavorable context for an assessment in confidence, despite the guarantees set by the Constitutional court in July 2019; namely that tests must be decided by the judicial authority, ordered only in the absence of valid identity documents. If there are doubts on the age, the person concerned, informed in a language he or she understands, 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.
 Article L.744-6 Ceseda.
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.
 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, 18.
 ECRE, Access to asylum and detention at France’s borders, June 2018, 22.
 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.
[7 Children’s Ombudsman, Conference France terre d’asile “Unaccompanied minors: third country nationals or children”, 30 October 2015.
Court of Appeal of Lyon, Decisions Nos 16/0043, 16/00602 and 16/00770, 11 January 2017.
 A 2018 report indicates that the rate varies from 9 to 100%, but data used for the purpose of this study are uncertain. IGAS, IGA, IGJ, ADF, Rapport de la mission bipartite de réflexion sur les mineurs non accompagnés, February 2018. Available in French at: https://bit.ly/31cvCHN.
 Elisabeth Doineau and Jean-Pierre Godefroy, Rapport d’information au nom de la commission des affaires sociales sur la prise en charge sociale des mineurs non accompagnés, French Senate, 28 June 2017, available in French at: http://bit.ly/2wZnDPr, 54.
 Article L.611-6-1 Ceseda, inserted by Article 51 Law n. 2018-778 of 10 September 2018.
 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.