Author
The Ceseda mentions that medical reports may be taken into account by OFPRA along with other elements of the asylum claim.[1] In practice, such reports are considered in the light of the applicant’s statements. Applicants often present medical certificates from specialised centres. The medical report is paid for by asylum seekers via the state supported medical insurance: the “protection universelle maladie” (PUMA) or “aide médicale d’Etat” (AME) (see Access to health care).
A medical certificate to confirm the absence of female genital mutilation (FGM) is requested during the examination of an asylum request presented by a young woman or girl based on that risk in her country of origin.[2] During the OFPRA interview, the woman applying for asylum in her own name will be asked to demonstrate the reasons why she fears to be subjected to FGM in case of return to her country of origin. If the asylum claim is made on behalf of a child, both parents will have to bring such evidence. Once a protection has been granted, the requirement of a medical certificate remains, as long as the risk exists and as long as the person concerned is under 18. OFPRA requires thus that a medical certificate be sent every five years, proving that the person has still not undergone FGM.[3] OFPRA may require a medical certificate at another time within that period if it has serious reasons to believe that sexual mutilation has been or could be practised. A Decree of February 2024 specifies the terms of this obligation, the list of authorised doctors, and consequences of refusal for parents.[4]
The consideration of medical certificates at the CNDA can vary a lot. A poorly argued dismissal of a medical certificate by the CNDA was criticised by the European Court of Human Rights (ECtHR) in September 2013.[5] On 10 April 2015, the Council of State applied the position of the ECtHR for the first time. It cancelled the CNDA decision, considering it should have duly taken into account the medical report presented by the asylum seeker as it was supporting his story and explaining his fears in case of return. As from this judgment, the CNDA has to take into consideration documents, such as medical reports, presenting elements relating to alleged risks and fears. The Court also has to justify why it does not consider the elements as serious.[6] This significantly strengthens the consideration for psychological and physical wounds of asylum seekers and balances out the power of the CNDA compared to the asylum seeker.[7] Through a decision of 17 October 2016, the Council of State reiterated and reinforced this position.[8]
In November 2016, the organisation Primo Levi published a study on the way medical certificates, stating physical or psychological wounds, are taken into account by asylum decision-makers in France. The report of this organisation highlights several elements, mainly that:[9]
- Physical and psychological wounds are not equally considered by the protection officers or by the judges. The first category seems to have more credibility to them;
- Even when such a certificate is presented to the decision makers, they do not seem to draw conclusions as to the impact of the established wound on the capacity of the asylum seekers to tell their story in a convincing way.
This organisation still considered in 2021 that “the logic of torture is not compatible with that of proof, currently dominant in the current approach to the right of asylum in France”.[10]
[1] Article L. 531-11 Ceseda.
[2] Articles L. 531-11 and L. 561-8 Ceseda.
[3] Article L. 561-8 Ceseda
[4] Decree NOR: IOMV2330687A of 6 February 2024, available in French at: https://bit.ly/3IV7foK.
[5] ECtHR, RJ v France, Application No 10466/11, Judgment of 19 September 2013, available at: http://bit.ly/1HBYxIE.
[6] Council of State, Decision No 372864, 10 April 2015, available in French at: http://bit.ly/1hjmyZ2.
[7] Nicolas Klausser, ‘Vers un renforcement du « droit » à une procédure équitable des demandeurs d’asile et une meilleure prise en compte de leurs traumatismes ?’, La revue des droits de l’homme, May 2015.
[8] Council of State, Decision No 393852, 17 October 2016, available in French at: https://bit.ly/43GGP3e.
[9] Association Primo Lévi, Persécutés au pays, déboutés en France : Rapport sur les failles de notre procédure d‘asile, November 2016, available in French at: https://bit.ly/3odqTFn.
[10] Motin, Pierre, ‘Certificat médical et demande d’asile. Le corps pris à témoin’, Mémoires, vol. 80, no. 1, 2021, available in French at: https://bit.ly/3GNg17y, 8-9.