Regular procedure

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The regular procedure is regulated by Book 6 (right to asylum and other international protections, articles L510-1 to L.597-1) of the CESEDA.

General (scope, time limits)

The determining authority in France, OFPRA, is a specialised institution in the field of asylum, under the administrative supervision of the Ministry of Interior since November 2007 (see Number of staff and nature of the determining authority).

Since May 2022, asylum seekers must connect to a secure digital platform on which OFPRA files all the documents that concern them (summons, decision, etc.).[1] The reception and accommodation places for asylum seekers have been equipped with computers so that everyone can access them, but sending by post remains possible exceptionally for people who cannot access digital tools. Support in these digital procedures remains a crucial issue[2] but the Council of State has considered that the system had sufficient guarantees.[3]

Under French law, OFPRA has 6 months to take a decision under the regular procedure.[4] When a decision cannot be taken within 6 months, OFPRA has to inform the applicant thereof within 15 calendar days prior to the expiration of that period.[5] An additional 9-month period for OFPRA to take a decision starts and, under exceptional circumstances, it can even be extended for 3 more months.[6] Nevertheless, the law provides no consequences to non-compliance with these time limits.

In 2017, the Government set a target processing time of 2 months for asylum applications examined by OFPRA.[7] However, the average first-instance processing time for all procedures was 4.2 months (126 days) in 2023, compared to 5.2 months (about 158 days) in 2022.[8]

The backlog of pending cases reached 47,296 as of the end of 2022 (compared to 49,207 in 2021).[9] No data is available for 2023.

Overseas France: As mentioned before (Lodging an application), specific rules may apply temporarily in Guiana, Guadaloupe and Martinique when the number of asylum applications is high. These measures apply permanently in Mayotte since 2022.

This notably implies shorter processing times for the OFPRA, which must rule within 21 days. For the implementation of these measures, OFPRA opened an office in Guyana and Mayotte.[10]

Prioritised examination and fast-track processing

The law provides for the possibility for OFPRA to give priority to applications introduced by vulnerable persons having identified “specific needs in terms of reception conditions” or “specific procedural needs”.[11] No information is available on the use of this provision in recent years.

Since 2013, OFPRA also conducts decentralised and external missions in order to accelerate the examination of claims from asylum seekers with specific nationalities or having specific needs.[12] This means that interviews are held in certain cities, instead of in the premises of OFPRA in the Paris region. This has resulted in 42 decentralised missions in 2019, 23 in 2020, 50 in 2021, 35 in 2022 and 47 in 2023 especially in Bordeaux, Lille, Lyon, Metz, Strasbourg, and overseas (7 missions in Mayotte). [13]

In 2018, the reform introduced in law the possibility for OFPRA to carry out resettlement missions.[14] In 2021, this included 21 missions in cooperation with UNHCR to resettle refugees especially from Lebanon, Jordan, Cameroun, Egypt and Rwanda as well as 9 missions in Europe for relocation from Greece and Italy. In 2022, OFPRA conducted 10 external missions in Europe for relocation (4 in Cyprus, 4 in Italia, 1 in Spain and 1 in Greece) and 26 outside Europe for resettlement (4 in Turkïye, 4 in Chad, 3 in Cameroon, 3 in Egypt, 3 in Jordania, 3 in Lebanon, 2 in Ethiopia, 2 in Niger and 2 in Rwanda).[15] In 2023, 23 missions were carried out outside the European Union, and 10 missions in Europe. [16]

Personal interview

The Ceseda provides for systematic personal interviews of applicants. There are two legal grounds for omitting a personal interview:[17]

• OFPRA is about to take a positive decision on the basis of the evidence at its disposal; or
• Medical reasons prohibit the conduct of the interview.

In practice, OFPRA rarely omits interviews. In 2022, 97.1% of asylum seekers were summoned for an interview,[18] compared to 93.8% in 2021, 92.6% in 2020, 96.5% in 2019. The rate of interviews actually taking place was 83.8% in 2022,[19] compared to 79% in 2021, 76.3% in 2020, 74.4% in 2019.[20] Statistics on the number of interviews in 2023 were not available at the time of writing of this report.

All personal interviews are conducted by protection officers from OFPRA. Asylum seekers are interviewed individually without their family members. A minor child can also be interviewed alone if OFPRA has serious reasons to believe that they might have endured persecutions unknown to other family members.[21] After a primary interview, OFPRA can nevertheless conduct a complementary one and hear several members of a family at the same time if it is necessary for assessing the risks of persecution.[22]

The law provides that the asylum seekers can ask the protection officer and the interpreter to be of a particular gender.[23] This guarantee is applied in practice, although not systematically, as the law provides that this request has to be deemed justified by OFPRA due to the difficulties of the asylum seeker to expose comprehensively the grounds of their claim, in particular if they have been subjected to sexual violence. Moreover, the law stipulates the request is granted “as far as possible”.

Videoconferencing

As a rule, interviews are conducted in the premises of OFPRA in Fontenay-sous-Bois, east of Paris. Interviews can be conducted through video conferencing in 3 cases:[24]

• The asylum seeker cannot physically come to OFPRA for medical or family reasons;
• The asylum seeker is held in an administrative detention centre; or
• The asylum seeker is overseas.

In situation (b) and (c), the applicant’s approval is not required to conduct the interview through videoconferencing.

An OFPRA Decision of 20 December 2022 has established the updated list of approved premises intended to receive asylum seekers, applicants for stateless status, refugees or beneficiaries of subsidiary protection heard in a professional interview conducted by OFPRA by an audio-visual communication procedure.[25] This includes several administrative detention centres, as well as waiting zones (see Border Procedure). La Cimade noted in a 2018 report that videoconferencing has negative effects on the quality of interview in detention. This was mainly due to material problems, communication difficulties as well as interpretation issues.[26]

In 2022, 3% of all interviews were conducted through video conferencing,[27] compared to 4% in 2021, 2.9% in 2020, 2.3% in 2019 (2.2% in 2018, 3.1% in 2017 and 4.2% in 2016). Statistics on the number of interviews conducted through video conferencing in 2023 were not available at the time of writing of this report. However, OFPRA did not use videoconferencing during the first lockdown in the context of COVID-19 as a way of maintaining its activity. Instead, all personal interviews on the mainland were cancelled between 16 March and 11 May 2020.

Overseas France: Since OFPRA opened offices in Guiana and in Mayotte, asylum seekers get an in person interview in these regions but videoconferencing remain used in other oversea territories.

Accompaniment by a third party

Asylum seekers have the possibility to be accompanied by a third person, either a lawyer or a representative of an accredited NGO.[28] In a Decision of 2 July 2019,[29] OFPRA’s Director-General updated and further detailed the conditions for the organisation and the proceedings of an interview in a presence of a third party.

The third party has to give prior notice of their presence at the interview. However, since COVID-19, OFPRA requires a 48 hours prior notice. Asylum seekers with disabilities may also ask OFPRA to be accompanied by their health worker or by a representative of an association providing assistance to people with disabilities. The absence of a third person does not prevent OFPRA from conducting the interview. The third person is not allowed to intervene or to exchange information with the asylum seeker or the interpreter during the interview, but they can formulate remarks and observations at the end of the interview (except for the health worker or association helping persons with disabilities, who may not speak). These observations are translated if necessary and written down in the interview report. The interview is also fully audio-recorded. Neither the third party nor the asylum seeker have the right to record the interview. The content of the interview and any notes taken are confidential and must not be disclosed by the third party, without prejudice to the necessities of a subsequent appeal.

The asylum seeker or the third person can ask to read the interview report before a decision is taken on the case. At the end of the interview, the asylum seeker and the third person who accompanies them are informed of their right to have access to the copy of the interview. The latter is either immediately given to the asylum seeker or sent to them before a decision is taken.[30] OFPRA Decision of 2 July 2019 allows for the possibility of providing further comments or documents after the interview, within a reasonable time-limit not hampering the decision-taking.

According to OFPRA decisions of 30 July 2020 and 21 April 2023, 38 organisations are authorised to accompany asylum seekers in interviews.[31] These organisations are frequently requested to accompany asylum seekers, most of the time by applicants not accommodated in the centres they run. However, the lack of specific funding dedicated to this mission renders such assistance difficult in practice. Only 1.8% of asylum seekers interviewed in 2022 were accompanied by a third party, compared to 1.58% in 2021, 1.4% in 2020 and 1.7% in 2019.[32] Figures for the year 2023 were not available at the time of writing.[33]

Interviews of vulnerable asylum seekers

Throughout the duration of the procedure, the OFPRA can “define the particular examination methods that it considers necessary for the exercise of the rights of an applicant due to their particular situation, their minority or their vulnerability”.[34]

Vulnerable people can be identified by the OFPRA before the interview, on the basis of information transmitted by the OFII during the first visit to the GUDA or with regard to the reasons for the asylum claim contained in the application. Identification can also take place within the framework of the investigation, with reports from stakeholders from associations or from the medical sector, who can send reports to the OFPRA.

Groups of experts are set up at OFPRA to take into account vulnerability when examining the request, around 5 protection needs: sexual orientation, unaccompanied minors, victims of torture, women victims of violence, victims of human trafficking. They provide support on these issues within the Office.

The asylum request of vulnerable people is processed by agents trained in initial or continuing training. All officers receive training in “receiving stories of suffering” and can follow EUAA training courses.[35]

The duration of the investigation can be adapted, including the possibility of reclassifying accelerated procedures into normal procedures.

In addition to authorised third parties, the presence of a mental health professional during the interview may be requested.

According to an EMN report, accompanied children are usually not interviewed. Only children who are considered of a sufficiently mature age (12 and above) can be interviewed when it is essential for the examination of their asylum application, for instance when their declarations might add relevant facts to the asylum case, or if (part of) the claim is related to the child rather than the parents. The interview of accompanied children can be undertaken in the absence of the parents where it is reasonable to believe that parents were not aware of the child’s reasons for applying for international protection, or where they could be involved in violence against the child.[36]

Interpretation

The presence of an interpreter during the personal interview is provided if the request has been made in the application form. Following the 2018 asylum reform, the language declared by the asylum seeker upon registration at the GUDA is binding for the entire procedure and can only be challenged at the appeal stage.[37]

Failure by OFPRA to provide interpretation may affect the validity of the first instance decision. The Council of State ruled in 2018 that where the asylum seeker has been unable to communicate and to be understood during the interview, due to the absence of an interpreter for their language or a language they sufficiently comprehend, and the deficiency is imputable to OFPRA, the asylum decision shall be annulled by CNDA.[38]

OFPRA interviews can be conducted in 117 languages.[39] Interpreters are not OFPRA staff but are recruited as service providers through public procurement contracts.

The law provides for a choice of interpreter ​​according to gender considerations, in particular if the asylum seeker has been subjected to sexual violence.[40] This provision also applies to protection officers.

In 2022, 89.1% of interviews were held in the presence of an interpreter,[41] compared to 96.1% in 2021, 91.6% in 2020, 86.9% in 2019, 92% in 2018 and 93% in 2017. No data was available regarding 2023 at the time of writing.

In 2020, interpretation was still conducted in-person and not by phone or videoconference despite the health crisis. OFPRA set up a health protocol, including temperature reading, mandatory masks for the asylum seeker, the interpreter and the protection officer, and protective plexiglass.

According to some stakeholders, the quality of interpretation can vary significantly. Some asylum seekers have reported that translations are too simplified (e.g. approximate translations or not in line with their answers) or carried out with inappropriate behaviour (e.g. inattentive interpreters or interpreters taking the liberty to make personal reflections or laughing with the protection officer). Moreover, OFPRA’s protection officers may sometimes act as interpreters themselves, which can have a diverse impact. Some asylum seekers report difficulties to open up to a person who speaks the language of the country involved in the alleged persecution. Nevertheless, some advantages have also been reported, such as demonstrating a particular interest for the region of origin.

OFPRA published a Code of Conduct for interpreters updated in August 2023.[42] It has also conducted trainings for interpreters, specifically concerning certain vulnerabilities of asylum seekers. There is no information yet on whether the Code of conduct is being well applied in practice, however.

Recording and report

An audio recording of the interview is also made. It cannot be listened to before a negative decision has been issued by OFPRA, in view of an appeal of the decision.[43] In case a technical issue prevents audio recording, additional comments can be added to the transcript of the interview. If the asylum seeker refuses to confirm that the content of the interview as transcribed complies with what was effectively said during the interview, the grounds for their refusal are written down. However, it does not prevent OFPRA from issuing a decision on their claim.[44] Moreover, the absence of an audio recording due to technical reasons does not in itself affect the validity of OFPRA’s decision, as it does not constitute an essential procedural guarantee according to the CNDA.[45]

Getting access to the audio recording after a negative decision has been issued by OFPRA is quite challenging for asylum seekers. During the time-frame between the notification of the negative decision and the lodging of the appeal, the recording can only be listened to in OFPRA offices, in Fontenay-sous-Bois. This makes more difficult for asylum seekers accommodated outside Paris and its surroundings to get access to the recordings. In addition to travel difficulties, it would require them to be able to understand both French and the translation and to take notes of the details of the interview while listening to the recording. As a result, only 4 asylum seekers went to OFPRA to listen to the recording of their interview in 2022 as 2021, they were 7 in 2020.[46]

Once an appeal is lodged before the CNDA, the audio recording can be obtained by asylum seekers’ lawyers (although this is not mandatory). Even if most of the lawyers pleading before the Court are based in Paris and its surroundings, it is much easier for asylum seekers to get access to the audio recording through them. The audio recording can be relied upon to substantiate the appeal.

A written transcription of the interview is made by the protection officer in charge. The report is not a verbatim transcript of the interview as in practice the protection officer takes notes themselves at the same time as they conduct the interview. The report is a summary of the questions asked by the protection officer, the answers provided by the asylum seeker and, since the adoption of the 2018 reform of the law on asylum, the observations formulated by the third person if applicable. It also mentions the duration of the interview, the presence (or not) of the interpreter and the conditions in which the asylum seeker wrote their application. It also includes, if applicable, the grounds for protection regarding the underaged children of the asylum seeker, the observations of the protection officer and the publicly available sources which may have been consulted by the protection officer for the examination of the case. The report is sent to the asylum seeker together with the notification of a negative decision; in the regular procedure it can be sent before the notification, if the applicant so requests. The report is written in French and is not translated for the applicant. In practice, the quality of the interview report can vary, as highlighted in OFPRA and UNHCR quality control reports (see Regular Procedure: General).

The interview report and the draft decision written by the protection officer are then submitted for validation to the section manager. In September 2013, a procedure of signature transfer was set up in order to accelerate the processing delays by enabling some protection officers to sign off on their own decisions.

Appeal

Appeal before the National Court of Asylum (CNDA)

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.

Following the rejection of their asylum application by the Director-General of OFPRA, the applicant may challenge the decision before the National Court of Asylum (CNDA). The CNDA is an administrative court specialised in asylum. It is divided into 23 chambers. These chambers are divided into formations of the court, each of them made up of 3 members:[47] a President (member of the Council of State, of an administrative court or appellate court, the Revenue Court or magistrate from the judiciary, in activity or honorary)[48] and 2 designated assessors, including one appointed by UNHCR. The presence of a judge appointed by UNHCR at the CNDA is a unique feature of the French asylum system.

The CNDA is competent for appeals against decisions granting or refusing refugee status or subsidiary protection, against decisions withdrawing refugee status or subsidiary protection and against inadmissibility decisions pertaining to subsequent applications and to asylum seekers benefiting from an effective asylum protection in another country. The CNDA may also hear “upgrade appeals” from applicants who have been granted subsidiary protection by OFPRA but who want to be recognised as refugees. In this case, the CNDA can grant the refugee status. If not, the persons retain subsidiary protection.

The appeal must be filed by registered mail or fax within 1 month from the notification of the negative decision by OFPRA. However, the calculation of this time-limit has been made more difficult by the 2018 Asylum and Immigration Law, which provides that the number of days used to present the legal aid application from the notification of the OFPRA decision, is deducted from the time-limit for lodging the appeal (see Regular procedure – Legal assistance).

Overseas France: For asylum applications lodged in French overseas departments (except Guyana),[49] asylum seekers have 2 months to appeal the OFPRA decision.^[50] Asylum seekers in these territories are heard in video hearing (196 in 2023)[51] or during occasional trips of the Court in these regions. One of the main challenge for asylum seekers is to find specialized lawyers in their area and for the Court it may be difficult to find interpreters.

There are specific formal requirements to submit this appeal:[52]

• It has to be written in French:
• It must contain the name, last name, nationality, date of birth and administrative address of the claimant;
• It must be based on law and facts;
• The certificate of asylum claim and the OFPRA decision must be attached;
• It has to be signed by the claimant or their attorney;
• It has to specify in which language the claimant wishes to be heard; and
• In case the claim has been processed as an accelerated procedure, the notice of information delivered by the Prefecture stating the reason for this must be attached.

This appeal has automatic suspensive effect for all asylum seekers in the regular procedure. The appeal is assessed on points of law and facts. Documents and evidence supporting the claim have to be translated into French to be considered by the CNDA.[53] Identity papers, judicial and police documents must be translated by an officially certified translator. The clerk informs OFPRA of the existence of an appeal against its decision and asks for the case file to be transferred within 15 calendar days.

The CNDA sends a receipt of registration of the appeal to the applicant which notifies them of their right to consult their file, the right to be assisted by a lawyer, the fact that the information concerning their application is subject to automated processing, of the possibility that their appeal will be processed “by order” (ordonnance), that is by a single judge without a hearing. In case the appeal has been lodged after the deadline, and in case of dismissal (non-lieu) or withdrawal of the applicant, the president of the CNDA or the president of one of the sections can dismiss the appeal by order. If the appeal does not contain any serious elements enabling a questioning of the OFPRA decision, it can also be dismissed “by order” (“ordonnance”) but after a preliminary assessment of the case.[54]

In 2023, the CNDA registered 64 685 appeals and took 66,358 decisions, compared to 61,552 appeals and 67,142 decisions in 2022.[55].

The appeal is processed by a panel of three in the regular procedure, while in the Admissibility Procedure and Accelerated Procedure only one single judge – either the President of the CNDA or the President of the relevant section – rules on the appeal. In 2023, the CNDA took 34,807 decisions in collegial function, down from 38,320 collegial decisions in 2022. It further took 31,550 single-judge decisions (i.e., 55% of total decisions) with 10,397 decisions following a hearing and 21,153 by order, compared to 18,390 in 2022 (10,432 following a hearing and 18,390 by order).[56]

Processing times

The law provides that the CNDA has to rule within 5 months under the regular procedure.[57]

The average processing time for the CNDA to process a claim decreased to 6 months and 3 days in 2023, compared to 6 months and 16 days in 2022 and 7 months and 8 days in 2021. During 2023, the average processing time was 6 months and 26 days for the regular procedure; and 4 months and 29 days for the accelerated procedure.[58]

The investigation of the case must be ended at least 5 days before the date set for the hearing in the regular procedure. This means that it is only possible to add further information to the appeal case until 5 days before the hearing.[59] After that date, producing new information might require reopening the investigation phase and possibly postponing the hearing. After the hearing, it is nevertheless possible to produce further elements to the Court by submitting a “note en délibéré”.[60] In the regular procedure, the Court publishes its decision 21 days after the hearing. During this delay,named “délibéré”, the claimant can inform the Court of new elements or claim for further study of the case if an incident took place during the hearing.

In case of an emergency hearing, to which an applicant must be summoned at least 7 days in advance, the investigation phase may be closed at the hearing itself.[61]

Hearing and decision

Unless the appeal is rejected by order (ordonnance), the law provides for a hearing of the asylum seeker. The fact that the CNDA may reject cases without hearing them has an effect on the duration of the procedure.

A summons for a hearing has to be communicated to the applicant at least 30 days before the hearing in the regular procedure,[62] at the address indicated to the CNDA.[63] These hearings are public, unless the President of the section decides that it will be held in camera. In most cases, hearings were held in camera following a specific request from the applicant. The hearing in camera is ipso jure (de plein droit), meaning that it must be done if the applicant requests it.[64] The CNDA must specify in its decision whether the hearing is public or held in camera.[65]

Asylum seekers who are not accommodated in reception centres have to organise and pay for their journey to the Court, close to Paris, themselves, even if they live in distant regions. For those accommodated, cost of such travel is included in the budget of the accommodation centre.

The hearing begins by the presentation of the report by the rapporteur. The judges can then interview the applicant. If the applicant is assisted by a lawyer, they are invited to make oral submissions, the administrative procedure before the CNDA being mainly written. Following the hearing, the case is placed under deliberation.

Out of the total of 66,358 decisions taken by the CNDA in 2023, 45,205 of them were issued following a hearing, of which 34,807 hearings were held in collegial function and 10,397 in single-judge format. The remaining 21,153 decisions were taken by order (ordonnance), i.e., 32% of all decisions.

The hearing takes place at the CNDA headquarters in Montreuil, near Paris, but the use of videoconferencing for CNDA hearings is allowed. Since 1 January 2019, the CNDA may use videoconferencing to ensure “a proper administration of justice”. The interpreter sits in a room together with the asylum seeker; if this is not possible, they are present from the side of the Court.[66] Where videoconferencing is used, the CNDA shall prepare two transcripts, one in the seat of the Court and one in the hearing room where the applicant is present.[67]

The CNDA held 263 video hearings in 2023, up from 267 in 2022, 165 in 2021 and 104 in 2020.[68] In practice, videoconferencing has usually only been applied to appeals lodged overseas, where it replaced mobile court hearings. The 2018 asylum law reform paved the way for its implementation regarding applicants in mainland France without their consent.[69] The law passed constitutional review[70] and thus the President of the CNDA issued a decision providing that videoconferencing would be established from the premises of the Administrative Courts of Appeal of Lyon and Nancy for appeals lodged after 1 January 2019 by person registered in certain parts of the relevant regions.[71]

This element of the 2018 reform was severely criticised, with practitioners referring to technical deficiencies in the videoconferencing system in Lyon. This negatively affects the quality of hearings and raises important fundamental rights concerns, which are exacerbated in cases involving vulnerable applicants.[72] The measure was suspended, and a mediator appointed to find a solution that would suit both the Court and the lawyers. As a result, the Court and the lawyer organisations reached an agreement in November 2020, providing for the express consent of the applicant as a prerequisite for videoconferencing and the holding of decentralised mobile hearings in Lyon and Nancy.[73] It also promoted a balance between videoconferencing and external hearings held directly by the court in Lyon and Nancy. In 2023, there were 42 hearing sessions (halfdays or days) by videoconference in Nancy and 25 in Lyon. The implementation of this agreement is monitored by a mixed steering committee of Court personnel, lawyers, interpreters, doctors’ representatives and audio-visual technical experts.[74] This does not apply to videoconferencing for applicants overseas, only to the attempt to expand videoconferencing further with applicants in mainland France.

Decisions of the CNDA are published (posted on the walls of the court building) after a period of 21 days following the hearing under regular procedure and after one week under accelerated procedure.[75] Negative decisions are forwarded to the Ministry of Interior, i.e. OFPRA and Prefectures. Since the COVID-19 crisis and considering the restrictions to access courts, the Court also publishes the anonymised list of its decisions on its website, thus enabling all applicants to be informed of decisions, including those who do not live in Paris.

In cases where it plans to reject the appeal by order due to the absence of serious elements enabling a questioning of the OFPRA decision, the CNDA has the obligation to inform the applicants about their rights to access their file.[76] In practice, however, the applicant is not informed that their appeal will be rejected by order. Courts consider that the general information provided upon registration of the appeal, which includes explaining that the applicant has the right to access the file, discharges them from their duty to inform.[77]

Furthermore, the Council of State has recently confirmed rejections by order as practiced by the Court, deciding that the CNDA can reject an appeal by order even if the applicant had announced a complementary statement which has not been submitted yet and even if the appeal deadline has not expired yet.[78]

Applicants are heard in the language declared upon registration of the asylum application at the GUDA. If an asylum seeker cannot be heard in the language they have indicated, they are heard in a language they can reasonably be expected to understand.[79]

Asylum seekers may face several obstacles in challenging a negative OFPRA decision. Although time limits and appeal modalities are translated on the back of the refusal notification, asylum seekers sometimes do not understand them, in particular those who are not accommodated in reception centres where they may have social workers available to them, as well as other asylum seekers going through the same procedure. Applicants are not eligible for support for the preparation of their appeal within the SPADA, where they were in theory eligible for support in first instance. They can only rely on volunteer assistance from NGOs, whose resources are already overstretched. In addition, reception centres do not officially offer legal assistance regarding the appeal. Their mission is circumscribed to a legal orientation to lawyers and to filling out the legal aid request form. In practice, most accommodation centres keep on assisting asylum seekers in writing and challenging their claim to the CNDA.[80]

Onward appeal before the Council of State

An onward appeal before the Council of State (Conseil d’Etat) is provided by law in case of a negative decision at CNDA level or in case OFPRA decides to appeal against a CNDA decision granting a protection status.[81] This appeal must be lodged within 2 months of the notification of the CNDA decision.[82] The Council of State does not review the facts of the case, but only allegations based on points of law such as compliance with rules of procedure and the correct application of the law by the CNDA. If the Council of State annuls the decision, it may refer the case back to the CNDA to decide again on the merits, but it may also decide to rule itself on the granting or refusal of protection.

This appeal before the Council of State must be presented by a lawyer registered with the Council of State. If the asylum seeker’s income is too low to initiate this action, they may request legal aid to the Office of legal aid of the Council of State. In practice, it is very difficult to obtain, as contrary to legal aid before the CNDA, the legal aid office of the Council of State does a preliminary review of the appeal and rejects legal aid where the appeal seems to manifestly inadmissible or devoid of any grounds.

The Council of State received the following appeals in 2023:

Source: CNDA, Rapport d’activité 2023, January 2024, available in French at: https://bit.ly/3xeY7sM.

This appeal is not suspensive, the average processing time is around two years and the applicant may be returned to their country of origin during this period.[83]

Legal assistance

Legal assistance at first instance

The modalities and the degree of assistance provided to asylum seekers at first instance depend on the type of reception conditions they enjoy:

• If the applicant is accommodated in a reception centre (see Types of Accommodation), they can be supported in the writing of their application form by staff from the reception centres, in accordance with the mission set out in their framework agreement.[84] As regards Reception Centre for Asylum Seekers (Centre d’accueil de demandeurs d’asile, CADA) teams, most of the time, social workers should also assist the applicant in the preparation of the interview at OFPRA. This consists of administrative rather than legal assistance.
• If the applicant cannot be accommodated in a reception centre, then the “reference framework” for asylum seekers’ “orientation platforms” (SPADA)[85] applies,[86] and they can obtain some basic information and assistance on the procedure from their relevant SPADA.

These assistance services are funded by OFII, by the Ministry of Interior and/or by EU funding under the Asylum, Migration and Integration Fund (AMIF).[87] Some local authorities sometimes contribute to this funding.

Access to legal assistance is therefore uneven dependent upon the type of reception conditions provided. Asylum seekers in the most precarious situations i.e.those without reception conditions are offered much fewer services than those accommodated in CADA. This situation leads to unequal treatment between asylum seekers accommodated in reception centres (a fortiori CADA), who receive support and in-depth assistance, and asylum seekers housed in emergency facilities or dependent upon unofficial sheltering solutions, who are without direct support and are sometimes located far away from the regional SPADA. Furthermore, the limited resources allocated to these platforms greatly limit the services provided.

Legal assistance at the appeal stage

Legal support for the preparation of appeals to the CNDA is not funded within the “reference framework” of the SPADA. Therefore, asylum seekers have to rely on legal support from lawyers.

The law foresees the granting of legal aid (“aide juridictionnelle”) for lawyers to file an appeal before the CNDA in case of a negative decision from OFPRA.[88] Legal costs can therefore, upon certain conditions, be borne by the State. In practice, the right to legal aid is considered ipso jure (de plein droit) in this case. Legal aid before the CNDA is an automatic entitlement and is granted upon request if: (a) the appeal does not appear to be manifestly inadmissible; and (b) the legal aid application is submitted within 15 days after receiving the notification of the negative decision from OFPRA. The 2018 asylum reform removed the possibility for the asylum seeker to apply for legal aid at any point before the expiry of the one-month deadline to appeal, therefore shortening the time limit to benefit from legal aid.[89]

Following the 2018 reform, the law provides that the legal aid application suspends the deadline to appeal before the CNDA. Time continues to run from the point the applicant or their legal representative receives the notification of legal aid from the Legal Aid Office.[90] As a result, the time available to lodge an appeal will vary depending on how early a legal aid application is submitted e.g. if the legal aid application is submitted 2 days after receiving the negative OFPRA decision, the deadline to appeal will be 28 days after the decision of the Legal Aid Office. This is a more restrictive stance from what was provided before the reform, where the time limit to lodge the appeal restarted in its entirety following the legal aid decision.

The recipients of legal aid have the right to choose their lawyer freely or to have one appointed for them by the Legal Aid Office.[91] The refusal to grant legal aid may be challenged before the President of the CNDA within 8 days. This legal aid for asylum seekers is funded though the State budget for the general legal aid system. In practice, legal aid is widely granted:

Source: CNDA, Rapport d’activité 2023, January 2024, available in French at: https://bit.ly/3xeY7sM, 35.

Since 2013, asylum lawyers receive 16 credits (€ 512 – excluding taxes) for appeals with a hearing and 4 credits (or € 106) for appeals without a hearing before the CNDA. Since 2022, the amount of the unit value is € 36 (excluding taxes).[92]

In any event, the current level of compensation is still deemed insufficient by many asylum stakeholders in France and this prevents lawyers from doing serious and quality work for each case.[93] In particular, it is not enough to cover the cost of an interpreter during the preparation of the case.[94] Lawyers are often court-appointed by the CNDA,[95] and only have the address of their clients and no phone numbers for the parties to effectively get in touch. Moreover, most of these lawyers are based in Paris whereas asylum seekers can be living elsewhere in France. Therefore, they often do not meet their clients until the last moment. Lawyers sometimes refuse to assist asylum seekers in writing their appeal and only represent them in court. This makes it difficult for asylum seekers to properly prepare for the hearing. Asylum seekers who are not accommodated in reception centres may therefore be on their own to write their appeal and face a high risk of seeing their appeal rejected by order due to insufficient arguments. They can only rely on legal assistance from NGOs, which is nevertheless very uncertain given the uneven availability of such assistance, as it is dependent on the location of the asylum seeker, the availability of interpreters as well as the capacity and resources of the NGO.[96]

[1] CESEDA, R.531-11 & R.531-17

[2] Forum réfugiés, ‘Dématérialisation : de multiples enjeux pour le système d’asile’, 23 November 2022, available in French at: https://bit.ly/3xeXPSI.

[3] CE, 464768, 6 June 2023, available in French at: https://bit.ly/3TxanfE.

[4] Article R. 531-6 Ceseda.

[5] Article R. 531-7 Ceseda.

[6] Article R. 531-6 Ceseda.

[7] Le Monde, ‘Le gouvernement fait de la réduction du délai de demande d’asile une des clés du plan migrants’, 12 July 2017, available in French at: https://bit.ly/40eItGn.      

[8] OFPRA, ‘Premières données de l’asile 2023 [chiffres provisoires]’, 23 January 2024, available in French at: https://bit.ly/3xaPG1u.

[9] OFPRA, Activity report, July 2023, P.68, available in French at : https://bit.ly/49eglrk.

[10] OFPRA, ‘Je demande l’asile outre-mer’, available in French at : https://www.ofpra.gouv.fr/je-demande-lasile-outre-mer

[11] Article L. 531-7 Ceseda.

[12] Marion Tissier Raffin, “Entretien avec Pascal Brice, Directeur général de l’OFPRA : « Entre continuité et modernisation : la diversification des missions de l’OFPRA »”, La Revue des droits de l’homme [Online], 13 | 2018, 05 January 2018, available in French at : https://bit.ly/3TOFlRI.

[13] OFPRA, Activity report, July 2023, P.68, available in French at : https://bit.ly/49eglrk.

[14] Article L. 520-1 Ceseda.

[15] OFPRA, Activity report, July 2023, P.9, available in French at : https://bit.ly/49eglrk.

[16] OFPRA, Activity report, July 2023, P.68, available in French at : https://bit.ly/49eglrk.

[17] Article L. 531-12 Ceseda.

[18] OFPRA, 2022 Activity report, July 2023, available in French at: https://bit.ly/3KHmAKi, 66.

[19] Ibid.

[20] OFPRA, 2017 Activity report, April 2018, available in French at: https://bit.ly/41tIMih, 50.

[21] Article L.  531-14 Ceseda.

[22] Ibid.

[23] Article L.  531-17Ceseda.

[24] Article R. 531-16 Ceseda.

[25] OFPRA, Decision of 23 December 2020, available in French at: https://bit.ly/44a5Rbf.

[26] La Cimade, Le droit d’asile en retention – Analyse d’une chimère, June 2018, available in French at: https://bit.ly/2EWkvIs, 29.

[27] OFPRA, 2022 Activity report, July 2023, available in French at: https://bit.ly/3KHmAKi, 66.

[28] Article L. 531-15 Ceseda.

[29] OFPRA, Decision of 2 July 2019 establishing organisational modalities for the interview according to the implementation of Article L.723-6 of the Ceseda, 2 July 2019, available in French at https://bit.ly/3KSIafX.

[30] Article R. 531-14 Ceseda.

[31] OFPRA, Décision du 21 avril 2023 fixant la liste des associations habilitées à proposer des représentants en vue d’accompagner le demandeur d’asile ou le réfugié ou le bénéficiaire d’une protection internationale à un entretien personnel mené par l’Ofpra, available in French at : https://bit.ly/41VNpBL. 

[32] OFPRA, 2017 Activity report, April 2018, available in French at: https://bit.ly/41tIMih, 51.

[33] OFPRA, 2020 Activity report, June 2021, available in French at: https://bit.ly/3GPni7b, 56.

[34] Article L.531-10 Ceseda

[35] OFPRA, ‘Guide des procédures’, December 2022, p.26, available in French at : https://bit.ly/3JdgVvf.

[36] EMN, Accompanied children’s right to be heard in international protection procedures, April 2023, available at: https://bit.ly/3POf9nF.

[37] Article L. 521-6 Ceseda, inserted by Article 10 Law n. 2018-778 of 10 September 2018.

[38] Council of State, Decision No 412514, 11 April 2018, EDAL, available at: https://bit.ly/2NiyFrb.

[39] OFPRA, Decision NOR: INTV1836064S of 28 December 2018 establishing the list of languages in which asylum seekers, applicants for stateless status, refugees and beneficiaries of subsidiary protection can be heard in the context of a personal interview, available in French at: https://bit.ly/412YSyO.

[40] Article L. 531-17 Ceseda.

[41] OFPRA, 2022 Activity report, July 2023, available in French at: https://bit.ly/3GPni7b, 97.

[42] OFPRA, Charte de l’interprétariat, August 2023, available in French at: https://bit.ly/3vs935w.

[43] Article L. 531-19 and 531-20 Ceseda.

[44] Article R. 531-15 Ceseda.

[45] CNDA, Mme N., Decision No 16040286, 29 October 2018, available in French at: https://bit.ly/2GVpI5O.

[46] OFPRA, 2022 Activity report, July 2023, available in French at: https://bit.ly/3KHmAKi, 75.

[47] A plenary session (Grande formation) is organised to adjudicate important cases. Under these circumstances, there are 9 judges: the 3 judges from the section which heard the case initially and 2 professional judges, 2 representatives of the Council of State and 2 assessors from UNHCR.

[48] 10 judges acting as presidents are now working full time at the CNDA, in addition to part time judges on temporary contracts.

[49] Guadeloupe, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, Mayotte, Saint Pierre and Miquelon, French Polynesia, the Wallis and Futuna Islands, New Caledonia and the French Antarctic Lands.

[50] Article R. 421-7 Code de justice administrative.

[51] CNDA, Activity report 2023, January 2024, available in French at: https://bit.ly/3xeY7sM.

[52] Articles R. 532-6 and 532-7 Ceseda.

[53] Article R.532-6 Ceseda

[54] The Council of State has ruled that when the CNDA takes an order, the absence of UNHCR does not contravene the 1951 Geneva Convention (in particular Article 35) or the Asylum Procedures Directive: Council of State, Decision 366578, 9 July 2014, available in French at: http://bit.ly/1CfPye8.

[55] CNDA 2024, Activity report 2023, available in French at: https://bit.ly/3GCMs90.

[56] Ibid.

[57] Article L.532-6 Ceseda

[58] Ibid.

[59] Article R. 532-23 Ceseda.

[60] Article L.731-3 Code de justice administrative

[61] Article R.532-32 Ceseda.

[62] Article R. 532-32 Ceseda. In case of “emergency” however, the period between the summons and the hearing can be reduced to 7 days.

[63] Council of State, Decision No. 414389, 7 June 2018, available in French at: https://bit.ly/2GABhQx.

[64] Article L.532-11 Ceseda

[65] Council of State, Decision No 418631, 7 December 2018, available in French at: https://bit.ly/2VeC4Kt.

[66] Article L.532-13 Ceseda, as amended by Article 8 Law n. 2018-778 of 10 September 2018. This was also confirmed in CNDA, M. N., Decision No 14024686, 12 September 2018, available in French at: https://bit.ly/2BVTxjF.

[67] Council of State, Decision No 408353, 7 March 2018, available in French at: https://bit.ly/2NgixpW.

[68] CNDA, 2024 Activity report, 2023, available in French at: https://bit.ly/43HhYfF, 7.

[69] At the time article L. 733-1 CESEDA; since 1 May 2021, article L. 532-13 CESEDA.

[70] Constitutional Court, Decision No. 2018-770 DC, 6 September 2018, available in French at: https://bit.ly/3okLnMI.

[71] CNDA, Decision 2018.12.DK.01 of 17 December 2018, available in French at: https://bit.ly/3KI09ED.

[72] See e.g. Forum réfugiés – Cosi, ‘Vidéo-audience à la CNDA : une mise en œuvre qui suscite l’inquiétude’, 1 February 2019, available in French at: https://bit.ly/3AC1FDG.

[73] Forum réfugiés-Cosi, ‘Cour national du droit d’asile : un accord sur la vidéo-audience qui préserve la qualité de l’instruction’, available in French at: https://bit.ly/3aQnkuu.

[74] CNDA, Vademecum sur les video-audiences devant la Cour Nationale du Droit d’Asile, 12 November 2020, available in French at: https://bit.ly/3a4nU92.

[75] CNDA decisions are however not accessible on the internet. Only a selection is published by the CNDA on its website: http://bit.ly/2ki5O6G. The CNDA also publishes a compilation of case law every year, available at: https://bit.ly/3HcgoZV.

[76] Article R. 532-3 (5) Ceseda.

[77] Article R. 532-9 Ceseda.

[78] Council of State, Decision No. 447293 of 10 November 2021, available in French at: https://bit.ly/3C0UTHi.

[79] Article R. 532-40 Ceseda.

[80] Practice-informed observations by Forum Réfugiés and partners, January 2024.

[81] Article L.511-1 CJA.

[82] See CNDA, ‘Voies de recours contre les décisions de la CNDA’, available in French at: http://bit.ly/1dBgbhO.

[83] Practice-informed observations by Forum Réfugiés and partners, January 2024.

[84] Bylaw of 19 June 2019 on missions of accommodation centers for asylum seekers, available at: https://bit.ly/35PnWMj.

[85] In France, these orientation platforms (plateformes d’accueil) can have several aims: they can receive asylum seekers to provide administrative, legal and social support and can also handle requests for housing and postal address (domiciliation). 23 of these platforms are managed by NGOs.

[86] Ministry of Interior, Reference framework for first reception services for asylum seekers, December 2011, available at: http://bit.ly/1C5aQLg, 10.

[87] Ministry of Interior, ‘selected FAMI projects in 2023’, available in French at : https://bit.ly/3xdlVx6.

[88] Article 3 Law n. 91-647 of 10 July 1991 on legal aid

[89] Article 9-4 Law n. 91-647 of 10 July 1991 on legal aid, as amended by Article 8 Law n. 2018-778 of 10 September 2018.

[90] Ibid.

[91] CNDA, ‘L’aide juridictionelle’, available in French at: http://bit.ly/1FXqvaw.

[92] Article 44, Budget law for 2022, available in French at: https://bit.ly/3vqhz2D.

[93] The CNDA is based in Paris and a return train ticket from other cities (such as Lyon) already takes a large part of the fee received.

[94] Senate, Information Report No. 130, prepared by Senators Jean-Yves Leconte and Christophe-André Frassa, 14 November 2012, available in French at: https://bit.ly/3UEb9Yh.

[95] Decree n. 2013-525 of 20 June 2013 on the compensation for the missions of Legal aid carried out by lawyers at the CNDA also extends the possibility to designate court-appointed lawyers to all lawyers registered in any Bar in France (it was previously restricted to the Bar Associations of Paris and Versailles).

[96] Practice-informed observations by Forum Réfugiés and partners, January 2024.