Author
The law foresees a specific procedure for the identification and orientation of asylum seekers with special reception needs. This procedure consists in an interview conducted by OFII officers. These officers are to be specifically trained on identification of vulnerability (see Identification).[1]
However, the Ceseda does not refer to vulnerability on account of sexual orientation or gender identity, therefore this is not taken into account by OFII either. In practice, LGBTQI+ persons face important difficulties when OFII does not provide them with housing, as most of the time they cannot find support in their national communities. So far, places in CADA are mostly allocated to vulnerable asylum seekers but whose vulnerability is “obvious” and visible (e.g., families with young children, pregnant women and elderly asylum seekers). The questionnaire that is used by OFII officers as part of the vulnerability assessment only focuses on “objective” elements of vulnerability, thereby hindering the identification of less visible needs.
The French system does not yet foresee any specific ongoing monitoring mechanism to address special reception needs that would arise during the asylum procedure. In practice, however, social workers in reception centres have regular exchanges with the asylum seekers and may be able to identify these special vulnerabilities, should they appear during the reception phase. It is possible for accommodation centres to notify OFII of the personal situation of an asylum seeker presenting a particular vulnerability and to ask for their re-orientation to a more suitable centre. In many occasions, social workers have reported the fact that the orientation carried out by OFII did not take into account the vulnerability of some asylum seekers. For example, asylum seekers in a wheelchair have been offered accommodated in a centre without any specific access for disabled persons. However, such monitoring is impossible for almost half of asylum seekers, who are not accommodated by the State.
The main difficulty for accommodation staff is however the identification of solutions to respond to certain needs (see section on Health Care on the limited access to mental health care for instance). Therefore, the obligation for OFPRA and OFII to take into account the specific situation of vulnerable persons throughout the asylum procedure, including when these vulnerabilities only appear after the vulnerability assessment, should lead to new practice. The vulnerability assessment’s conclusions as well as all information related to asylum seekers are to be computerised.[2] Consequently, it should be easier to approach vulnerability in a more comprehensive way and to facilitate exchange of information. However, this is far from being effective in practice and many legal and practical measures such as trainings and provisions of tools to social workers are still lacking to allow this system to be implemented.
In the specifications of different types of accommodation centres (CADA[3], HUDA[4]), it is mentioned that each adult should have an individual space of at least 7.5 m2 preserving privacy in shared or private room. There is no formal policy to prevent mixed sex accommodation but in practice single women are not accommodated in the same rooms as single men. Toilets and bathrooms are not necessarily separated, depending on the place available in the accommodation centre.
For the year 2019, the Ministry of Interior had requested that Prefectures develop places for asylum seekers with disabilities, but there is no further information about whether this was implemented in practice. It had further announced the opening of places dedicated to women victims of violence or trafficking:[5] in practice, about 300 dedicated places were created in 2019, and were operating as of 2020. They are located in Auvergne Rhône Alpes, Ile-de-France, Provence-Alpes-Côte d’Azur, Nouvelle Aquitaine and Occitanie. Moreover, 200 places dedicated to LGBTI asylum seekers places were opened in 2022, but no additional budget has been planned for these additional missions.
As mentioned above, a governmental plan on vulnerability, including specific actions for asylum seekers, will be published in early 2021 to increase the identification of vulnerable groups and better address their needs. At the beginning of 2022, the Ministry of the Interior launched a training on vulnerability addressed to many asylum actors (authorities, NGOs, etc.). At the end of 2021, a ‘’health appointment’ has been established in some GUDA by OFII: at the first step of the asylum process, OFII suggest a visit with a doctor to identify health problems and refer to appropriate services.[6] It is free and not mandatory. In 2022, 3,371 appointments took place in 13 GUDA.[7]
Care system (“prise en charge”) for unaccompanied children regardless of status
The term unaccompanied child has no explicit definition in French law.[8] The protection of young persons is therefore based on the notion of children at risk, as outlined in French legal provisions on child protection, which is applicable regardless of nationality or the status of an asylum seeker. Local authorities (Départements / Conseils généraux) are in charge of children at risk so they have to protect unaccompanied children in France. Following the age assessment procedure (see Age assessment of unaccompanied children), unaccompanied minors are accommodated and accompanied by social services of these local authorities (during the social evaluation, they benefit from 5 days of accommodation in emergency services). It is therefore difficult to obtain an overview of the situation for unaccompanied children at the national level. The Ministry of Justice has been in charge of the coordination of this issue at national level since 2010, but its role is limited in practice to the distribution of children between local authorities.
The distribution mechanism is set out in law.[9] The geographical distribution is done according to criteria defined by way of decree:[10]
- The population of the department, compared to the national population;
- The number of unaccompanied minors sheltered and supported at the end of the year;
- The transmission to the Ministry of Justice of the number of unaccompanied minors taken in charge by Childhood Welfare as of 31 December.
- Local socio-economic specifities
- The number of young people accompanied after 18 years old
If no data are collected and transmitted, it will be considered that no unaccompanied minors have been supported and assisted in the concerned départements. These départements will therefore have to increase the number of minors assisted during the following year.
In a report sent to the United Nations Committee on the Rights of the Child in July 2020, the Ombudsman pointed out several shortcomings in the childcare system concerning migrant children with families and unaccompanied children.[11] This included using former hotels to accommodate children, in substandard living conditions and with limited prospects of integration. It further highlighted that the lack of adequate services and the long distance between hotels and these services was likely to lead to children dropping out of school. In practice, however, little has changed and similar issues continue to be reported, albeit less frequently. In two reports published in October 2021 and February 2022 respectively, the Ombudsman reported persistent shortcomings in social services for unaccompanied children, including burdensome procedures at prefectures and obstacles to accessing education.[12]
A new law on child protection was adopted on 25 January 2022. It prohibits, inter alia, the accommodation of children in hotels as of 2024.[13] Until 2024, children can only be placed in hotels for a maximum of two months and under reinforced security measures.
Regarding asylum procedures, when unaccompanied children go to the Prefecture in order to lodge an asylum application, the authorities only verify whether a legal guardian is present or not. If not, a legal representative to support and represent the child in asylum procedures (ad hoc administrator) should be appointed (see Legal Representation of Unaccompanied Children). In practice, several workers regularly report that some Prefectures still do not accept to register the asylum claims of unaccompanied children.[14] Asylum-seeking children are sometimes channelled to the common law procedure for unaccompanied minors and they are prevented from registering their asylum claim.
Specific centres for unaccompanied children
As a general rule, after identification, unaccompanied children (including those between 16 and 18) are placed in specific children’s shelters that fall under the responsibility of the departmental authorities.[15] These are managed by the conseils départementaux. They may also be accommodated in foster families. Due to the lack of places, children are often accommodated in hotels in practice.
However, none of these centres are designed for asylum-seeking children specifically. In some départements, children are hosted in centres with all children in need of social protection, but another service helps them in their specific procedures. As an example, since 2005, Forum réfugiés has carried out missions to provide information, legal support and assist in the referral of hundreds of asylum-seeking unaccompanied minors arriving in Lyon. The OFPRA leaflet targeted to unaccompanied asylum-seeking children lists a number of specialised NGOs providing support.[16] When children are not accommodated in specialised centres, legal support depends on available services provided by NGOs in the geographical area.
Moreover, on 28 February 2019, the ECtHR ruled in case Khan v. France that the failure of the French authorities to provide care for an unaccompanied minor in the Calais refugee camp was in breach of Article 3 of the Convention.[17] In September 2020, the French Ombudsman sent a communication to the Committee of Ministers concerning this case, highlighting several difficulties in accessing protection for unaccompanied minors in France.[18] [19]
[1] Article L. 552-2 Ceseda.
[2] Article L. 522-4 Ceseda.
[3] Arrêté du 19 juin 2019 relatif au cahier des charges des centres d’accueil pour demandeurs d’asile, NOR : INTV1916144A, available in French at : https://bit.ly/3PBRKpq.
[4] Arrêté du 19 juin 2019 relatif au cahier des charges des lieux d’hébergement d’urgence pour demandeurs d’asile, NOR : INTV1916145A, available in French at: https://bit.ly/43CRRH5.
[5] Ministry of Interior, Circular NOR: INTV1900071J, 31 December 2018, available in French at: https://bit.ly/3L4ZcHP, 7.
[6] OFII, ‘Le rendez-vous santé à l’OFII, pourquoi, pour qui, où ?’, August 2022, available in French at: https://bit.ly/3zA8ftU.
[7] Strategic committee on national reception plan, meeting at ministry of Interior, 20 March 2023.
[8] Foreign unaccompanied children do not constitute any specific category in the Ceseda, except for two articles which mention them in relation to the ad hoc administrator (Articles L.221-5 and L.751-1), or in the CASF.
[9] Law n. 2016-297 relating to childhood protection, 14 March 2016, available in French at: http://bit.ly/2jPyjYW.
[10] Code de l’action sociale et des familles, article R.221-13. Arrêté du 1er février 2024 pris en application de l’article R. 221-13 du code de l’action sociale et des familles et modifiant l’arrêté du 28 juin 2016 modifié relatif aux modalités de calcul de la clé de répartition des orientations des mineurs privés temporairement ou définitivement de la protection de leur famille, NOR : JUSF2328970A, available in French at: https://bit.ly/3VvU7hx.
[11] Défenseur des droits, ‘Rapport au Comité des droits de l’enfant’, 10 July 2020, available in French at: https://bit.ly/3TST6yE.
[12] Defenseur des droits, ‘Avis 21-15 du 15 octobre 2021 relatif au projet de loi sur la protection des enfants’, available in French at: https://bit.ly/3pQo5w0; Défenseur des droits, ‘Les mineurs non accompagnés au regard du droit’, 3 February 2022, available in French at: https://bit.ly/3hPHSHB.
[13] Loi No. 2022-140 du 7 février 2022 relative à la protection des enfants, available at: https://bit.ly/3qnGiRo.
[14] Practice-informed observation and based on exchanges with other asylum professionals, Forum Réfugiés, January 2023; see also Défenseur des droits, ‘Les mineurs non accompagnés au regard du droit’, 2022, available in French at: https://bit.ly/3KETLhz, 22.
[15] Information on the various schemes for unaccompanied children is available at: http://bit.ly/1JP5kiG.
[16] OFPRA, ‘Guide de l’asile pour les mineurs isolés étrangers en France’, December 2019. This list includes: Centre enfants du monde (CEM – Croix Rouge française); Coallia; France terre d’asile; InfoMIE; pôle d’évaluation des mineurs isolés étrangers (PEMIE – Croix Rouge française).
[17] ECtHR, Khan v. France, Application no. 12267/16, 28 February 2019, summary available at EDAL at: https://bit.ly/3PAK4E0.
[18] Committee of Ministers, ‘Communication from an NHRI (Défenseur des droits de la République Française) (27/07/2020) concerning the case of Khan v. France (Application No. 12267/16), available in French at: https://bit.ly/2OsmAV0.
[19] Committee of Ministers, ‘1390th meeting, 1-3 December 2020 (DH) – H46-9 Khan v. France (Application No. 12267/16) – Supervision of the execution of the European Court’s judgments’, available at: https://bit.ly/2Z7SDM8.