Regular procedure

France

Country Report: Regular procedure Last updated: 18/03/21

Author

Forum Réfugiés – Cosi Visit Website

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). A time limit of 6 months is set for OFPRA to take a decision under the regular procedure.[2] 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.[3] 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.[4] 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.[5] However, the average first-instance processing time for all procedures was 262 days in 2020, due to the impact of COVID-19 on OFPRA’s activity,[6] up from 161 days in 2019 and 150 days in 2018.[7] During COVID-19, the OFPRA officially suspended all its interviews of asylum claims, from 16 March up until 11 May 2020. As a result, the backlog of pending cases reached 84,000 as of the end of 2020.[8]

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”.[9] 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 seekers with specific nationalities or having specific needs. This means that interviews are being held in certain cities, instead of being held on the premises of OFPRA in the Paris region. This has resulted in 42 decentralised missions in 2019 (compared to 23 in 2018) which were conducted in Metz, Lyon, Rennes, Toulouse, Montpellier, Strasbourg and Nantes and overseas departments (12).[10] In 2020, OFPRA held 23 decentralised missions in Toulouse, Périgueux, Lyon, Metz, Aix-en-Provence, Annecy, Lille and overseas (Mayotte, Martinique, Guadeloupe and French Guiana)[11]

OFPRA also continued its missions abroad. In 2020, this included 8 missions in cooperation with UNHCR to resettle refugees from Turkey, Lebanon, Jordan, Chad, Egypt and Rwanda as well as 19 missions in Europe following search and rescue operations in Italy and Malta as well as missions to support the asylum system in Greece (where, for the first time, it involved cases of unaccompanied minors) .[12]

The 2018 reform has introduced the possibility for OFPRA to carry out resettlement missions in the law.[13]

Personal interview

The Ceseda provides for systematic personal interviews of applicants. There are two legal grounds for omitting a personal interview:[14]

  • 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 2019, 96.5% of asylum seekers were summoned for an interview,[15], compared to 90.1% in 2018, 97.1% in 2017, 94.1% in 2016 and 95.4% in 2015. The rate of interviews actually taking place was 74.4% in 2019[16], stable compared to 74% in 2018 (77.6% in 2017, 72.4% in 2016 and 76% in 2015).[17] Statistics on the number of interviews in 2020 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 he or she might have endured persecutions unknown to other family members.[18] 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.[19]

The law provides that the asylum seekers can further ask the protection officer and the interpreter to be of a particular gender.[20] This guarantee is applied in practice, yet 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 her/his claim, in particular if she/he has 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:[21]

  • 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.

An OFPRA Decision of 23 December 2020 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.[22] 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.[23]

In 2019, 2.3% of all interviews were conducted through video conferencing, compared to 2.2% in 2018, 3.1% in 2017 and 4,2% in 2016. Statistics on the number of interviews conducted through video conferencing in 2020 were not available at the time of writing of this report. However, the 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 metropolitan territory were cancelled between 16 March and 11 May 2020.

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.[24] In a Decision of 2 July 2019,[25] OFPRA’s Director-General has updated and further detailed the conditions for the organisation and the proceedings of the interview in a presence of a third party.

The third party has to give prior notice of her/his presence at the interview. The 4 to 7 days time limit previously applied is no longer in place according to the decision. 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 he or she can formulate remarks and observations at the end of the interview. These observations are translated if necessary and written down in the interview report. The interview is also fully 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 him or her 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 it is sent before a decision is taken.[26] The 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 taking of the decision.

According to an OFPRA Decisions of 10 December 2018 and 30 July 2020, 38 organisations are authorised to accompany asylum seekers in interviews.[27] These organisations are frequently requested to accompany asylum seekers, most of the time from 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 1.7 % of asylum seekers interviewed in 2019 were accompanied by a third party, compared to 1.9% in 2018 and 1,8% in 2017.[28] Figures for the year 2020 were not available at the time of writing.

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.[29]

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 his or her language or a language he or she sufficiently comprehends, and the deficiency is imputable to OFPRA, the asylum decision shall be annulled by CNDA.[30]

OFPRA interviews can be conducted in 117 languages.[31] 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.[32] This provision also applies to protection officers.

In 2018, 92% of interviews were held in the presence of an interpreter[33], compared to 93% in 2017.[34] In 2019, 86.9% of the scheduled interviews included an interpreter.[35] No data was available regarding 2020 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 in November 2018.[36] 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.[37] In case a technical issue prevents the audio recording from being put in place, additional comments can be added to the registration of the interview. If the asylum seeker refuses to confirm that the content of the interview registered is in compliance with what has effectively been said during the interview, the grounds for his or her refusal are written down. However, it cannot prevent OFPRA to issue a decision on his or her claim.[38] 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.[39]

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 it impossible for asylum seekers accommodated outside Paris and its surroundings to get access to 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 11 asylum seekers went to OFPRA to listen to the recording of their interview in 2019.[40]

Once an appeal is lodged in CNDA, the audio recording can be obtained by asylum seekers’ lawyers (although this is not mandatory). Even if most of lawyers pleading to 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 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 him or herself at the same time as he or she conducts 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 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 his or her application. It also includes, if applicable, the grounds for protection regarding the minor 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 any 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 the OFPRA and UNHCR quality control reports.

The interview report and the draft decision written by the protection officer are then submitted for the validation of the section manager. Since September 2013, a procedure of transfer of signature has been set up in order to accelerate the processing delays.

Appeal

Appeal before the National Court of Asylum (CNDA)

 

Following the rejection of their asylum application by the Director General of OFPRA, the applicant may challenge the decision to the National Court of Asylum (CNDA). The CNDA is an administrative court specialised in asylum. The CNDA is divided into 22 chambers. These chambers are divided into formations of courts each of them made up of 3 members:[41] 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)[42] 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 benefit of subsidiary protection remains valid.

The appeal must be filed by registered mail or fax within 1 month from the notification of the negative decision by OFPRA. For asylum applications lodged in French overseas departments,[43] asylum seekers have 2 months to appeal the OFPRA decision.[44] 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 1 month (or 2 months) time-limit for lodging the appeal (see Legal assistance).

There is a specific form to submit this appeal:[45]

  1. It has to be written in French:
  2. It must contain the name, last name, nationality, date of birth and administrative address of the claimant;
  3. It must be founded in law and facts;
  4. The certification of asylum claim and the OFPRA decision must be attached;
  5. It has to be signed by the claimant or his or her attorney;
  6. It has to specify in which language the claimant wishes to be heard; and
  7. In case the claim has been channelled to 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. 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 to the applicant which notifies the applicant of his or her right to consult his or her file, the right to be assisted by a lawyer, the fact that the information concerning his or her application is subject to automated processing, of the possibility that his or her appeal will be processed “by order” (ordonnance) namely 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.[46]

In 2020, the CNDA registered 46,043 appeals and took 42,025 decisions, compared to 59,091 appeals and 66,466 decisions in 2019. [47] The important decrease of appeals and decisions is due to the impact of COVID-19. During the first lockdown in March-April 2020, the CNDA was closed during 8 weeks.

The appeal is processed by a Court panel 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 section – rules on the appeal. In 2020, the CNDA took 23,149 decisions in collegial function, down from 31,102 collegial decisions in 2019. During that year, it further took 18,876 single-judge decisions following a hearing or by order, compared to 35,362 in 2019.[48]

Processing times

The law sets a time limit for the CNDA to take a decision. The CNDA has to rule within 5 months under the regular procedure.

The average processing time for the CNDA to take a decision increased to 8 months and 8 days in 2020 compared to 7 months and 5 days months in 2018, due to the suspension of activities during 8 weeks in the context of COVID-19. During 2020, the average processing time 10 months and 19 days for the regular procedure; and 3 months and 21 days for the accelerated procedure.[49]

The deadline for closing the inquiry is 5 days minimum 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.[50] After the hearing, it is nevertheless possible to produce further elements to the Court by submitting a “note en délibéré”. In the regular procedure, 21 days are taken by the Court before delivering its decision. This delay is named “délibéré”, during which the claimant can inform the Court of new elements or claim for further study of the case should an incident have taken place during the hearing.

In case of an emergency hearing, taking place no less than 7 days after summons, the inquiry may be closed at the hearing.[51]

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. If the court makes a decision “by order”, the duration of the procedure will be up to three months faster.

A summons for a hearing has to be communicated to the applicant at least 30 days before the hearing in the regular procedure,[52] at the address indicated to the CNDA.[53] 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 is applied upon request of the applicant. The CNDA must specify in its decision whether the hearing is public or held in camera.[54]

Asylum seekers who are not accommodated in reception centres have to organise and pay for their journey themselves, even if they live in distant regions.

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, he or she is 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 42,025 decisions taken by the CNDA in 2020, 28,178 of them were issued following a hearing, of which 23,149 hearings were held in collegial function and 5,029 in single-judge format.  The remaining 13,847 decisions were taken by order (ordonnance).

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 even without the consent of the applicant, to ensure “a proper administration of justice”. The interpreter sits in a room together with the asylum seeker; if this is not possible, he or she is present from the side of the Court.[55] 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.[56]

The CNDA held 104 video hearings in 2020, down from 223 in 2019.[57] In practice, videoconferencing has only been applied to appeals lodged overseas, where it replaced mobile court hearings. It has not been applied to mainland France in 2020, although a recent CNDA decision provides that videoconferencing will be established in the premises of the Administrative Court of Appeal of Lyon and Nancy for all appeals lodged after 1 January 2019.[58]  The 2018 reform has been severely criticised in this regard, 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 .[59] This measure has been suspended, and a mediator was appointed to find a solution that would suit both the Court and the lawyers. As a result, the Court and the lawyers organisations reached an agreement in November 2020, providing for the express consent of the applicant as a prerequisite for the videoconferencing and for the holding of decentralised mobile hearings in Lyon and Nancy.[60] The implementation of this agreement will be monitored by a mixed steering committee of Court, lawyers, interpreters, doctors representatives and of audio-visual technics experts.[61]

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.[62] Negative decisions are transmitted 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.[63] In practice, however, the applicant is not informed that his or her 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.[64]

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 he or she has indicated, he or she is heard in a language he or she can reasonably be expected to understand.[65]

Asylum seekers face several obstacles in challenging a negative OFPRA decision. Although time limits and appeal modalities are translated at the back of the refusal notification, some asylum seekers sometimes do not understand them, in particular those who are not accommodated in reception centres. Applicants are not eligible for support for the preparation of their appeal within the PADA. 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 the legal aid request form. In practice, most accommodation centres keep on assisting asylum seekers in writing and challenging their claim to the CNDA.

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.[66] This appeal must be lodged within 2 months of notification of the CNDA decision.[67] The Council of State does not review the facts of the case, but only allegations supported by the applicant 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 refers to the CNDA to decide again on the merits of the case, 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, he or she may request legal aid to the Office of legal aid of the Council of State. In practice, it is very difficult to obtain it.

The Council of State received the following appeals in 2020:

 

Appeals before the Council of State : 2016-2020
  2016 2017 2018 2019 2020
Total number of appeals 847 1,052 836 905 614
Total number of decisions 788 1,069 845 866 644
Admissible 26 24 34 49 42
Not admissible 762 1,045 811 817 602
Decisions on admissible appeals 21 26 28 38 49
Positive decision for asylum seeker 16 21 24 26 30

Source: CNDA, Activity report, 2020, 10. Note that there is an admissibility procedure carried out before a case is examined by the Council of State, as a result of which only a few appeals are admissible and decided upon in practice as indicated in the table above.

 

This appeal is not suspensive, the average processing time is around two years and the applicant may be returned to his or her country of origin during this period.

 

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), he or she can be supported in the writing of his or her application form by staff from the reception centres, in accordance with the mission set out in their framework agreement.[68] 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” (PADA)[69] applies,[70] and he or she can obtain some basic information and assistance on the procedure.

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). Some local authorities sometimes contribute to this funding.

Access to legal assistance is therefore uneven depending on the type of reception conditions provided. Asylum seekers in the most precarious situations, 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 dependant on unofficial sheltering solutions, who are without direct support and are sometimes located far away from the regional PADA. 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 PADA. Therefore, asylum seekers have to rely on legal support from lawyers.

The law foresees the granting of legal aid (“aide juridictionelle”) for lawyers to file an appeal to the CNDA in case of a negative decision from OFPRA.[71] Legal costs can therefore, upon certain conditions, be borne by the State.

The right to legal aid is considered as ipso jure (de plein droit). 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 has 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.[72]

Following the 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 his or her legal representative receives the notification of legal aid from the Legal Aid Office.[73] 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.

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.[74] 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:

 

Applications for legal aid before the CNDA: 2015-2020
  2015 2016 2017 2018 2019 2020
Total applications 29,181 30,193 42,749 48,620 51,891 39,788
Total decisions on applications 28,627 29,324 44,989 46,639 51,888 42,261
   Granted 25,933 28,217 43,466 44,985 48,789 40,105
   Refused 2,694 1,107 1,523 1,384 3,099 2,156
   Acceptance rate 90.6% 96.2% 96.6% 96.4% 94% 94.9%

 

Source: CNDA, 2020 Activity report, 31

 

Until 2013, lawyers working in the field of asylum were granted lower financial compensation (8 credits, or 256 € per file – excluding taxes) than the fee allocated for ordinary cases before administrative courts. A Decree of 20 June 2013 doubles the unit value (16 credits, or 512 € – excluding taxes) for appeals with a hearing and 4 credits (or 106 €) for appeals without a hearing before the CNDA.[75] Since 2017, the amount of the unit value is 32 € (excluding taxes).[76]

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.[77] In particular, it is not enough to cover the cost of an interpreter during the preparation of the case.[78] Lawyers are often court-appointed by the CNDA,[79] 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. These 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 are therefore 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.

[1]           Article R.723-2 Ceseda.

[2]           Article R.723-2 Ceseda.

[3]           Article R 723-3 Ceseda.

[4]           Article R.723-2 Ceseda.

[5]           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://goo.gl/rz18KD.

[6]           OFPRA, ‘Premières données de l’asile 2020, 21 January 2021, available in French at: https://bit.ly/3cAaIKy.

[7]           Ibid.

[8]           OFPRA, ‘Premières données de l’asile 2020, 21 January 2021, available in French at: https://bit.ly/3cAaIKy.

[9]           Article L.723-3 Ceseda.

[10]          OFPRA, ‘Les premières données de l’asile 2019 à l’OFPRA, 21 January 2020, available in French at: https://bit.ly/38zltHM.

[11]          OFPRA, ‘Premières données de l’asile 2020, 21 January 2021, available in French at: https://bit.ly/3cAaIKy.

[12]          Ibid.

[13]        Article L.714-1 Ceseda, inserted by Article 7 Law n. 2018-778 of 10 September 2018.

[14]          Article L.723-6 Ceseda.

[15]          OFPRA, 2019 Activity report, June 2020, available in French at https://bit.ly/3jFo0aa, 56

[16]          ibid

[17]          OFPRA, 2017 Activity report, April 2018, available in French at: https://goo.gl/ih5jkG, 50.

[18]          Article L.723-6 Ceseda.

[19]          Ibid.

[20]          Article L.723-6 Ceseda

[21]          Article R.723-9 Ceseda.

[22]          OFPRA, Decision of 23 December 2020, available in French at: https://bit.ly/2OtwKVp.

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

[24]          Article L.723-6 Ceseda.

[25]          OFPRA, Decision of 2 July 2019 establishing organisational modalities for the interview according to the implementation of Article L.723-6 of the Ceseda, available in French at https://bit.ly/3aP2rzW.

[26]          Article R.723-7 Ceseda.

[27]          OFPRA, Decision NOR: INTV1833858S of 10 December 2018 establishing the list of organisations competent for proposing representatives to accompany asylum seekers or refugees or beneficiaries of subsidiary protection to a personal interview held by OFPRA, available at https://bit.ly/3oE2D9V; OFPRA, Decision of 30 July 2020 establishing the list of organisations competent for proposing representatives to accompany asylum seekers or refugees or beneficiaries of subsidiary protection to a personal interview held by OFPRA, available in French at https://bit.ly/3jajKiA.

[28]          OFPRA, 2017 Activity report, 51.

[29]          Article L741-2-1 Ceseda, inserted by Article 10 Law n. 2018-778 of 10 September 2018.

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

[31]          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://goo.gl/S8bgaX.

[32]          Article L.723-6 Ceseda.

[33]          OFPRA, 2018 Activity report, available in French at https://bit.ly/3jbYYzm.

[34]          OFPRA, 2017 Activity report, 80.

[35]          OFPRA, Activity report 2019, 90

[36]          OFPRA, Charte de l’interprétariat, November 2018, available in French at: https://goo.gl/vSEYFT.

[37]          Article L.723-7 Ceseda.

[38]          Article R.723-8 Ceseda.

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

[40]          OFPRA, 2019 Activity report, 56.

[41]          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.

[42]          10 judges acting as presidents are now working full time at the CNDA, in addition to part time judges on temporary contracts.

[43]          Guadeloupe, Guiana, 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.

[44]          Article L.733-7 Ceseda.

[45]          Article R.733-5 Ceseda.

[46]          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.

[47]          Ministry of Interior, Chiffres clésLes demandes d’asile, available in French at: https://bit.ly/2TRCMzB.

[48]          CNDA, 2020 Activity report, available in French at: https://bit.ly/3aGSg04.

[49]          Ibid.

[50]          Article R.733-13 Ceseda.

[51]          Article R.733-19 Ceseda, as amended by Article 14 Decree n. 2018-1159 of 14 December 2018.

[52]          Article R.733-19 Ceseda. In case of “emergency” however, the period between the summons and the hearing can be reduced to 7 days.

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

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

[55]          Article L.733-1 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.

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

[57]          CNDA, 2019 Activity report, 35.

[58]          CNDA, Decision 2018.12.DK.01 of 17 December 2018, available in French at: https://goo.gl/CksrSR.

[59]          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://goo.gl/n78xcp.

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

[61]          CNDA, Vademecum on videoconferencing hearings before the National Court of Asylum, 12 November 2020, available in French at: https://bit.ly/3a4nU92.

[62]          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://goo.gl/GCQy4o.

[63]          Article R.733-4(5) Ceseda.

[64]          Article R.733-8 Ceseda.

[65]          Article R.733-5 Ceseda, as amended by Article 14 Decree n. 2018-1159 of 14 December 2018.

[66]          Article L.511-1 CJA.

[67]          See CNDA, Appeals before the Council of State, available in French at: http://bit.ly/1dBgbhO.

[68]          Annex 1 Circular on CADA Mission, 19 August 2011, available at: http://bit.ly/1Kv5fiG. This is expected to be amended soon.

[69]          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.

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

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

[72]          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.

[73]          Ibid.

[74]          CNDA, Legal Aid, available in French at: http://bit.ly/1FXqvaw.

[75]          Decree n. 2013-525 of 20 June 2013 on the compensation for the missions of Legal aid carried out by lawyers at the CNDA.

[76]          Circulaire du 19 janvier 2017 présentant certaines dispositions de l’article 135 de la loi n° 2016-1917 du 29 décembre 2016 de finances pour 2017 et du décret n° 2016-1876 du 27 décembre 2016 portant diverses dispositions relatives à l’aide juridique NOR: JUST1701743C, available in French at :  https://bit.ly/2OL2RwV.

[77]          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.

[78]          Senate, Information Report n°130, prepared by Senators Jean-Yves Leconte and Christophe-André Frassa, 14 November 2012.

[79]          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).

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation