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FRANCE
Toward a Just and Humane Asylum Policy
When he took office in June, French Prime Minister Lionel Jospin promised
to revisit some of the most restrictive elements of immigration and asylum
policy adopted in recent years. Acting promptly on this commitment, in
July he appointed academic Patrick Weil to head a commission to examine
the entire immigration and asylum system and make recommendations for its
reform. The Weil report, released on July 31, contains proposals that have
been transposed into draft legislation currently under consideration by
the French government.
For the past year, Human Rights Watch/Helsinki has investigated and
monitored French asylum policies, conducting numerous interviews with lawyers,
human rights advocates, refugee assistance organizations, asylum seekers,
and government officials. In the course of this work, we have identified
several aspects of French asylum policy that contravene governing international
standards. In particular, we have found deficiencies in access to the asylum
procedure, the procedural rights accorded during that procedure, and the
jurisprudence interpreting the scope of France's obligations under the
Convention relating to the Status of Refugees (the "Refugee Convention").
We therefore welcome the Jospin government's plans to include asylum policy
within its reform effort, and we urge it to seize this opportunity to bring
France's policies and practices in line with its international commitments.
Asylum seekers face many obstacles to obtaining protection in France.
First, like all European countries, France has adopted strict visa requirements
making it virtually impossible for an asylum seeker--regardless of the
urgency of his or her need for protection--to travel lawfully to France
to obtain protection. These visa requirements, imposed in concert with
other European countries, are credited with the dramatic drop in the number
of people seeking protection in France in recent years. Those who nonetheless
manage to travel to France may have serious problems getting their asylum
applications registered with the authorities. We received several credible
reports that officials responsible for registering claims at French borders
and in regional préfectures (administrative offices) unlawfully
obstruct access to the procedure, in some cases placing asylum seekers
at risk of immediate return to their country of origin with no consideration
of the merits of their asylum claims.
Those granted access to the asylum procedure may also face difficulties.
France boasts one of the smallest backlogs of asylum cases in Europe, but
this has been achieved at a cost. First, asylum seekers receive inadequate
information and assistance regarding the procedure. Second, the French
Office for the Protection of Refugees and Stateless Persons (Office français
de protection des réfugiés et apatrides, "OFPRA"), the agency
responsible for deciding refugee status claims, conducts personal interviews
in only half of its cases. Particularly prejudiced by this policy are those
whose claims are decided pursuant to OFPRA's "priority procedure" for applications
deemed fraudulent or abusive, and for those considered the responsibility
of a "safe third country," a country other than the asylum seeker's country
of origin to which she can be safely returned. Such cases are usually decided
within forty-eight hours and without the benefit of an OFPRA interview.
All asylum seekers have an opportunity to be heard on appeal by the Refugee
Appeals Commission (Commission des recours des réfugiés,
"CRR"), but the commission hearings are very brief and their interpreter
and translation services are inadequate. Only those who enter the country
lawfully--a small minority--are entitled to free legal assistance in the
appeal proceedings. Moreover, applicants whose cases are decided via the
priority procedure have no right to remain in France pending a decision
on their appeal.
A third area of concern for Human Rights Watch/Helsinki is France's
restrictive interpretation of its obligations under the Refugee Convention.
Contrary to the letter and spirit of the convention, France refuses to
accord refugee protection to those persecuted by virtue of their sexual
orientation and to those whom governments fail to protect from persecution
at the hands of insurgent groups or other non-state agents. Although it
extends temporary protection to some of those excluded under this jurisprudence,
this temporary protection regime is inadequate.
The Weil report acknowledges some of these problems and, through its
proposals, seeks to remedy them. Human Rights Watch/Helsinki welcomes the
recommendation that OFPRA provide personal interviews for all asylum seekers.
On other points, however, the Weil report is too vague or goes only halfway.
For example, it simply recommends that a committee be convened to consider
reforming the procedures of the CRR. And rather than conform France's interpretation
of the Refugee Convention to international standards, Mr. Weil would create
new, subsidiary forms of protection for victims of non-state persecution.
Still other issues remain unaddressed altogether. For example, nothing
in the Weil report addresses the obstacles that asylum seekers face in
merely obtaining access to the asylum procedure in France. The government's
draft law adopts Mr. Weil's proposals almost in their entirety, and is
therefore characterized by the same shortcomings.
Human Rights Watch/Helsinki urges the French government to face the
problems with its asylum system head-on and incorporate the following much-needed
reforms into the package of legislative and administrative proposals currently
under consideration.
Regarding border procedures
Regarding substantive asylum law
The entity responsible for initial refugee status decisions in France
is the French Office for the Protection of Refugees and Stateless Persons
(OFPRA), an independent administrative entity operating formally under
the Ministry of Foreign Affairs. The current director of OFPRA is Jean-François
Terral. Appeals of negative OFPRA decisions are handled by the Refugee
Appeals Commission (CRR), an administrative tribunal in which asylum appeals
are heard by three-member panels made up of a professional judge, a representative
of the United Nations High Commissioner for Refugees (UNHCR), and a representative
of the OFPRA Council consisting largely of government officials. General
political responsibility for immigration and asylum policies rests with
the minister of interior, currently Jean-Pierre Chevénement.
France experienced a jump in asylum applications earlier than many of
its European partners. Applications peaked in 1989 with 61,422, a significant
increase over the 34,352 applications filed the year before. The number
of those seeking protection in France has dropped annually ever since.
In 1996, applications fell to a fifteen-year low at 17,280.
(2) Like other European countries, France has utilized a combination
of visa requirements and carrier sanctions to suppress the number of applications.
OFPRA has avoided the backlog of asylum cases that has plagued other European
countries, but it has done so by according many asylum applications only
cursory review, accompanied by inadequate procedural safeguards.
French law provides for protection of those whom OFPRA or the CRR recognizes
as "refugees" as defined in article 1(A) of the Refugee Convention and
articles 6 and 7 of the Statute of the Office of the UNHCR, namely any
person who, "owing to a well-founded fear of being persecuted for reasons
of race, religion, nationality, membership of a particular social group
or political opinion, is outside of the country of his nationality and
is unable or, owing to such fear, is unwilling to avail himself of the
protection of that country." (3) In 1996,
OFPRA made 22,121 decisions on asylum applications, granting refugee status
in 4,338 cases. (4) OFPRA and CRR decisions
reflect a restrictive interpretation of the Refugee Convention, most notably
in their refusal to recognize persecution suffered at the hands of armed
groups and other non-state entities, without state complicity. Most rejected
asylum seekers exercise their right of appeal to the CRR, although it affirms
the OFPRA decision in more than 95 percent of appeals.
Unlike many other European countries, France does not grant residence
permits on humanitarian grounds. The constitution recognizes the right
to asylum for those who are persecuted because of their activities in support
of freedom, but this language has not been given specific content in the
asylum law and is rarely invoked. The French government has not enacted
a law on temporary protection of refugees in mass influx situations, choosing
rather to pursue ad hoc arrangements in limited circumstances. Pursuant
to a confidential internal administrative circular sent to all préfets
(heads
of France's administrative regions) in August 1992, the préfets
were authorized to grant provisional residence permits to those fleeing
the former Yugoslavia for renewable three- or six-month periods. In addition
to the cases of former Yugoslavs, a number of Algerians have received temporary
protection. Again, there is no basis in the law for this policy, but in
certain cases in which Algerians are denied refugee status, OFPRA refers
the case to the Ministry of Interior for it to determine whether temporary
protection in the form of a renewable provisional residence permit is appropriate.
(5)
International harmonization of asylum policies is reflected in various
aspects of French law and practice in the asylum field. As contemplated
and endorsed by European Union (E.U.) resolutions, France has maintained
a "safe third country" policy, meaning that without considering the merits
of an asylum claim, it could send an asylum seeker to any "safe" country
that would admit the asylum seeker and protect him against persecution
or refoulement, i.e., return to a country where he fears persecution.
This practice has been modified some in the past year since a Council of
State decision that France may not refuse an asylum seeker access to its
territory solely on "safe third country" grounds. In practice, since the
decision, only those border applicants whose asylum claims are otherwise
deemed "manifestly unfounded" are returned to "safe third countries." Procedures
in these cases remain in accordance with restrictive policies articulated
at the E.U. level: asylum seekers with claims deemed "manifestly unfounded"
do not have access to the regular asylum procedure, and they have no right
to remain in France during the pendency of an appeal.
International influence on French asylum policies is not limited to
the E.U. In addition, France is a party to the 1985 Schengen Agreement
aimed at the elimination of border controls among several European states.
A parallel implementation convention specifies rules for determining one
and only one signatory state responsible for each asylum claim filed in
the signatories' collective territory. As a general rule, the signatory
state that permits the applicant to enter the signatories' collective territory--by
issuing the asylum seeker a visa or letting the asylum seeker cross the
external border--is responsible for examining the asylum application. In
the absence of these factors, the first state in which the asylum seeker
applies for asylum must examine the application. If the responsible state
denies his asylum application, he may not subsequently apply in another
signatory state. Signatory states retain the right, however, to examine
an application that is the responsibility of another state. These rules,
which essentially codify the "safe third country" concept among the signatory
states, came into effect in March 1995. Similar rules were adopted in the
1990 Dublin Convention determining the State responsible for examining
applications for asylum. Agreed among all E.U. member states, this convention
came into effect and replaced the already functioning Schengen asylum system
on September 1, 1997. Problems with the implementation of these conventions
are discussed in greater detail below (see Problems at the Préfectures).
Access to French asylum procedures represents a significant and multi-faceted
problem. Asylum seekers face obstacles in the form of visa requirements
that limit their ability to travel to France. If they present themselves
at the border, they will likely be placed in detention and, with limited
information, assistance, or translation services, may be unable to convince
the authorities to acknowledge their claim. Half of those claims that are
registered at the border are denied as manifestly unfounded. If they present
themselves inside the territory, they may face similar impediments: obstructionist
behavior on the part of préfecture officials; limited translation
services making communication of their claims difficult; and rules for
screening certain categories of applications out of the regular procedure
and into accelerated "priority procedures." Each aspect of the access problem
is discussed below.
Travel to France: Visa Requirements and Carrier Sanctions
Like other E.U. member states, France requires visas from nationals
of most refugee producing states. These are reinforced by the carrier sanctions
regime required under the Schengen Convention. Unlike some other countries,
France actually enforces these sanctions, which can cost an airline up
to 10,000 FF (approximately U.S. $1,670) per undocumented passenger it
brings to France. In a recent report to parliament evaluating the sanctions
regime adopted in February 1992, the Ministry of Interior reported that
in the first three years of the regime, police filed 4,905 reports of undocumented
travelers. Air France, liable for the majority of these reports, has been
fined eight million FF (approximately U.S. $1,338,400).
(6) Visa restrictions and carrier sanctions, while not specifically
intended to target asylum seekers and refugees, nevertheless significantly
restrict access to French asylum procedures for many people in need of
protection.
Even when asylum seekers reach French territory, they may have difficulty
getting their claims before OFPRA for a decision. The procedure varies
for those seeking asylum at the border and those seeking asylum within
French territory. For those seeking asylum at the border, French law provides
that they may be denied access to the territory to seek asylum only by
a decision of the Ministry of Interior, taken in consultation with the
Ministry of Foreign Affairs. (7) In practice,
asylum seekers whose claims are recognized by border officials are referred
to the Ministry of Foreign Affairs Border Asylum Division, which, after
interviewing the asylum seeker, forwards its recommendation to the Ministry
of Interior for a final decision. An asylum seeker may be held in a "waiting
zone" (i.e. detention center) while these authorities determine whether
his or her asylum claim is "manifestly unfounded."
(8) If it is, the asylum seeker may appeal the decision to the
Administrative Tribunal, but this appeal does not suspend deportation,
which may take place immediately. If the asylum seeker's claim is not manifestly
unfounded, he will receive documents permitting him to enter the territory
to seek asylum. "Manifestly unfounded" is not defined in French law, but
a recent report of the Ministry of Interior indicates that the criteria
used include whether the applicant may be returned to a "safe third country,"
whether the application lacks a legal basis in the Refugee Convention,
whether the application clearly lacks sufficient factual basis, whether
the asylum seeker has cooperated with the authorities and made a timely
claim for asylum, and whether, notwithstanding a manifestly unfounded claim,
humanitarian considerations dictate admission for the asylum seeker.
(9) Approximately 500-600 asylum applications are registered
at the borders each year and approximately 50 percent of those asylum seekers
are admitted to the territory to seek asylum. (10)
The majority of decisions regarding admission are based on a combination
of the factors cited above. (11)
Problems with the border procedure are multifold. First, refugee assistance
organizations express concern that border authorities may not always recognize
or register asylum claims in order to refer them to the Ministry of Foreign
Affairs and the Ministry of Interior for a decision on entry to the territory.
(12) Officials of the Ministry of Interior deny that this happens.
They claim that in cases in which an asylum claim has allegedly been ignored,
they have investigated police records and found no record that the asylum
seeker claimed asylum. They conclude therefore that the asylum seeker was
not ignored or misunderstood, but rather that she failed to state a claim
for asylum. (13) But the absence of a police
record of a claim is of course equally corroborative of the asylum seeker's
assertion that the police intentionally or unintentionally ignored her
claim. Case documentation provided by organizations and lawyers to Human
Rights Watch/Helsinki indicates that border officials do sometimes fail
to register asylum claims. (14) That only
500-600 asylum applications are registered annually at all French border
crossing points (most of them at Paris' Charles de Gaulle airport) lends
further credence to these concerns. By contrast, in the first quarter of
1997 alone, the Netherlands registered 1,894 asylum claims at Schiphol
Airport outside of Amsterdam. (15)
Representatives of refugee assistance organizations told Human Rights
Watch/Helsinki that they receive reports of individuals detained at the
borders and unable to claim asylum. (16)
In many cases, they report, asylum seekers arrive at the airport and they
do not claim asylum immediately, because they do not speak French, do not
know whom to ask, or expect to be admitted to the territory and to ask
asylum then. In other cases, the border authorities have reportedly ignored
statements and documentation indicating that an asylum seeker wishes to
seek asylum. Regardless of the reason that an asylum seeker's claim is
not immediately registered, when this happens, an undocumented asylum seeker
will likely be placed in a waiting zone as an illegal alien awaiting deportation.
Once he or she is placed in a waiting zone, it may be even more difficult
to register an asylum claim because the police on duty in the zones may
not accept it. Information, translation services, and legal assistance
are not readily available in the waiting zones. The asylum seeker will
receive copies of written detention and deportation decisions, containing
reference to her rights; but these are generally available only in French
and the oral translation often omits details about the asylum seeker's
rights. (17) A 1995 decree authorizes visits
to waiting zones by the UNHCR and authorized refugee assistance organizations,
but these visitation rights are quite limited. Only five organizations,
including UNHCR, have been authorized to visit the zones under the decree.
And each organization may visit each zone only once each quarter.
(18) While providing a minimal control over conditions in the
zones, this limited visitation regime is of no effective assistance to
detainees trying to challenge their detention or make a claim for asylum
from the waiting zones. One organization told us that they try to place
daily telephone calls to the pay phone at the waiting zone at Charles de
Gaulle airport to see if anyone needs help and only that way do they learn
of asylum seekers whose claims have not been acknowledged.
(19) Persistent problems have also been reported at French harbors,
where, pending deportation, stow-aways are generally detained on board
the boat on which they came to France, with no access to information or
assistance and substantial impediments to making an asylum claim.
(20)
If, notwithstanding these problems, the asylum seeker gets his claim
registered at the border, it may be screened out as manifestly unfounded
and the asylum seeker deported to his country of origin or a "safe third
country," defined as a country to which asylum seekers will be admitted
and where they will risk neither persecution nor refoulement.
(21) Approximately 50 percent of the 500-600 annual border applications
are screened out as manifestly unfounded, meaning that the Ministry of
Foreign Affairs and Ministry of Interior authorities have concluded that
the application lacks a sufficient legal or factual basis, is untimely,
or some combination of those factors. (22)
These criteria give the authorities substantial discretion to make substantive
asylum determinations. Such determinations, reached quickly and based on
an increasingly restrictive interpretation of the Refugee Convention (see
discussion below), risk refoulement of legitimate asylum seekers. The five
countries from which the most asylum seekers placed asylum applications
at the border in 1996 were Iraq, Nigeria, Rwanda, Zaire, and Somalia.
(23) Conditions in all of these countries warrant close scrutiny
of their nationals' asylum claims. Yet, asylum seekers at the border are
detained in a waiting zone where they often have no legal or other assistance.
Officials of the Border Asylum Division of the Ministry of Foreign Affairs
conduct an interview, usually lasting one hour, and then make a recommendation
on admission to the Ministry of Interior, which the latter usually accepts.
(24) Ministry of Interior officials maintain that they err on
the side of admission in border application cases.
(25) But, after such cursory procedures, in 1996 the authorities
concluded that 68 percent of Nigerians and 67 percent of Zairians had manifestly
unfounded claims and should not have access to the territory to seek asylum.
(26) Iraqis, Rwandans, and Somalis faired better, with admission
rates of 93 percent, 88 percent, and 80 percent, respectively.
(27) Asylum seekers screened out at the border may appeal these
decisions to the Administrative Tribunal, but their appeal will not suspend
the deportation. After four days in the "waiting zone" they will be brought
before a judge, but his jurisdiction only covers the decision to detain
them, not the decision to deport them. In practice, many are deported before
the four day period expires. (28)
Access to the asylum procedure from within French territory is reportedly
better than at the borders, but Human Rights Watch/Helsinki has received
reports of certain problems, nonetheless. If an asylum seeker is within
French territory, in order to seek asylum, he or she must go to the préfecture
(29) to obtain a provisional residence permit and asylum application.
The permit allows residence in France for one month, during which time
the asylum seeker is supposed to complete and send the application to OFPRA
for consideration. French law provides that the préfecture
may not deny permission to seek asylum for the sole reason that the applicant
lacks documents otherwise required for admission into France. Rather, it
may deny access to the regular asylum procedure in only four cases: (1)
pursuant to the Schengen Agreement or Dublin Convention, another state
is responsible for the asylum claim; (2) the asylum seeker is admissible
in another country where he will benefit from effective protection against
persecution and refoulement; (3) the asylum seeker's presence in France
poses a grave risk to public security; and (4) the application is based
on deliberate fraud, constitutes an abuse of the asylum procedures or is
made for the sole purpose of obstructing imminent expulsion.
(30) Even so, in cases falling in the last three categories,
the préfecture will refer the claim to OFPRA, albeit with
a request that the claim be adjudicated in its accelerated priority procedure.
Except in the exceptional cases noted above, the préfectures
are supposed to distribute provisional residence permits and refugee status
applications to asylum seekers as a matter of course. In an interview with
Human Rights Watch/Helsinki, Jean-François Terral, director of OFPRA,
insisted that the préfectures have no competence regarding
the substance of refugee status claims. He stated, "They are obliged to
give a one-month residence permit; they can never deny anything."
(31) Nonetheless, lawyers and advocates for asylum seekers report
several problems often encountered at the préfectures, suggesting
that the préfectures sometimes create serious obstacles to
those seeking asylum. A UNHCR official based in Paris told Human Rights
Watch/Helsinki that "from the moment an application appears malifide, [préfecture
authorities]
are going to make life difficult for [the asylum seeker]. [He/she] might
have difficulties even getting the form." (32)
Although French law and the Refugee Convention provide that asylum seekers
should not be penalized for lacking proper travel documents, sometimes
préfecture
officials reportedly obstruct access to the procedure for those without
proper documents. (33) To make matters
worse, interpretation services are limited or non-existent at the préfectures,
making it very difficult for many asylum seekers to explain irregularities
in their documents or otherwise communicate their asylum claims to the
authorities. A Ministry of Interior official interviewed by Human Rights
Watch/Helsinki confirmed that professional interpreters may not always
be available at the préfectures, but he asserted that in
most cases it does not matter because the asylum seekers can find someone--another
asylum seeker or other foreigner--in the room to translate for them. He
reported that if that does not work,
préfecture officials
will send the asylum seeker away, telling him or her to return in ten days
with a friend who can act as an interpreter. (34)
The use of non-professional interpreters is contrary to international guidelines
on asylum procedure and risks material errors in communication of asylum
claims. (35) The combined effect of these
practices is that préfecture officials sometimes either wittingly
or unwittingly deny access to the asylum procedure. When préfecture
officials refuse a provisional residence permit--because they do not understand
the asylum seeker or object to some irregularity in her travel documents--the
asylum seeker then risks arrest on the street for illegal residence, followed
by detention and a deportation order. At that point, any effort to claim
asylum could be discounted and denied as an effort to obstruct deportation.
Those asylum seekers who make themselves understood at the préfectures,
still risk being refused a provisional residence permit and access to the
normal asylum procedure for one of the four reasons identified above. Human
Rights Watch/Helsinki has identified several areas of concern relating
to this screening role that the préfectures play in the asylum
procedure.
The first criterion for screening out applications is that the application
is the responsibility of another state signatory to the Schengen or Dublin
agreements. These conventions raise two significant human rights concerns.
First, they can cause considerable hardship during the asylum procedure.
Family members that enter the signatories' collective territory by different
travel routes or under authorization of different countries may be required
by the Schengen and Dublin systems to go through the asylum procedure in
different countries. In principle, they should be able to reunite after
the procedure, but because substantive and procedural asylum laws are not
uniform among signatory states, they are likely to obtain decisions on
their applications at different times, and some may get status while others
are returned to their country of origin, making reunification practically
and legally difficult. Moreover, even if asylum seekers can reunite after
the procedure, this can take months and even years, during which they must
live apart from their families. In a dramatic example of the harm these
asylum rules can cause, a lawyer told Human Rights Watch/Helsinki about
a client who traveled to Paris via Germany, accompanied by her daughter,
who, though an adult, is severely mentally disabled and unable to care
for herself. Because the mother had a visa for France, she was required
to seek asylum in France. Unfortunately, the daughter did not have a visa
and therefore had to return to Germany (the country that permitted her
entrance into the Schengen area) to seek asylum.
(36) Schengen signatory states have recently agreed on certain
guidelines to avoid division of families during the asylum procedure, but
these guidelines are reportedly quite restrictive in their identification
of family members who may remain together during the procedure. Moreover,
no such rules exist for the Dublin system, which has now replaced Schengen
asylum rules.
The Schengen and Dublin rules not only split families during the procedures;
they also raise the risk that asylum seekers will be returned to a country
where they face persecution. This risk arises, because although these agreements
designate one state responsible for adjudicating the asylum claim, that
responsible state reserves the right to send the asylum seeker to yet another,
non-signatory state allegedly responsible for the claim.
(37) Indeed, under the 1992 E.U. Resolution on a Harmonized Approach
to Questions Concerning Host Third Countries, member states agreed to look
for a non-E.U. state to which to send asylum applicants
before applying
the Dublin Convention to identify the responsible E.U. state.
(38) Under this resolution, criteria for identifying such "safe
third countries" are quite loose, requiring only that the asylum seeker's
life or freedom not be threatened there, that he will not be exposed to
torture or inhuman or degrading treatment there, that he has had protection
in the third country or will be admitted to the country, and that he will
not be returned from the third country to his country of origin. There
is no requirement that the third country be a party to the Refugee Convention,
that it maintain asylum procedures complying with international standards,
nor that it actually agree to consider the merits of the returned asylum
seeker's claims. Significantly, the resolution says nothing about the criteria
that a "safe third country" must itself use to define additional "safe
third countries." In practice, this means that under the Schengen and Dublin
systems, signatory states can and do expel asylum seekers to "safe third
countries," which in turn expel them to other countries, safe or not, and
in some cases even back to their countries of origin, without there ever
being any substantive review of the asylum claims.
The risk of such chain deportation arises not only indirectly pursuant
to France's implementation of the Schengen and Dublin agreements, but also
when the préfectures apply France's own "safe third country"
rule--the second basis on which they can screen an application out of the
regular asylum procedures. The préfecture may apply the "safe
third country" rule if there is another country where the asylum seeker
is admissible and will not be persecuted nor refouled to his country of
origin. (39) Exclusion pursuant to the
"safe third country" rule is rare for asylum applications submitted at
préfectures,
but the potential for this policy to cause ultimate refoulement remains
a cause for concern.
The third basis on which the préfectures may screen out
asylum claims--the asylum seeker poses a threat to public security--is
reportedly rarely used. Human Rights Watch/Helsinki received no reports
of human rights concerns raised by this provision.
Finally, the préfectures are authorized to screen out
applications that are fraudulent, abusive, or made for the sole purpose
of obstructing imminent expulsion. This is the basis most frequently cited
by préfecture authorities for denying a provisional residence
permit giving the applicant time to apply for asylum to OFPRA.
(40) The broad language of this provision vests substantial authority
in
préfecture officials, which lawyers and refugee assistance
organizations allege they sometimes abuse. An application may be considered
fraudulent or abusive because of irregularities in an applicant's documents
or any delay between her arrival in France and her application at the préfecture,
notwithstanding reasonable explanations. Of particular concern is the apparent
tendency to apply this provision to applicants who have been returned to
France as a "safe third country," and to those who are controlled for identity
documents before they have been able to obtain the asylum application and
provisional residence permit from the préfecture.
Except in cases transferred from France pursuant to the Schengen and
Dublin agreements, all cases in which the préfecture screens
out the asylum claim--because they came through a safe third country (other
than the Schengen and Dublin signatories), they pose a threat to public
security, or the claim is fraudulent, abusive, or made only to obstruct
deportation--the case is nonetheless sent to OFPRA for a final decision
prior to deportation. Unfortunately, the procedure accorded such cases
is woefully inadequate. The asylum seeker is interviewed at the préfecture
by the police, usually without the benefit of information about the procedure
or the assistance of a lawyer or other counselor, and often without a professional
interpreter. (41) These interviews normally
last approximately one hour. (42) The asylum
seeker then completes a written refugee status application, which, together
with the record of the interview, consisting of the interviewer's notes,
is sent to OFPRA, along with the préfecture's recommendation
that the case be considered in its accelerated priority procedure. OFPRA
generally considers the case on the basis of the written record forwarded
by the préfecture, calling asylum seekers for interviews
in only approximately 10 percent of such cases. (43)
A decision is usually reached within forty-eight hours and in 95 percent
of cases it concurs in the préfecture's conclusion that the
claim should be denied. (44) An asylum
seeker may appeal this decision to the CRR, but the appeal does not suspend
the deportation order and she can be deported immediately while the appeal
is still pending.
OFPRA Director Jean-François Terral defended the "priority" procedure
for cases screened out by the préfectures, noting that in
1996 such cases accounted for only 520 out of over 17,000 applications
OFPRA received. (45) This does not obviate
the fact that most of those 520 individuals were denied basic procedural
rights outlined in UNHCR guidelines, including guidance regarding the procedure,
the assistance of a competent interpreter, and the right to remain in the
country while an appeal is pending. (46)
Case documentation provided to Human Rights Watch/Helsinki by refugee
assistance organizations illustrates the impediments to seeking asylum
that asylum seekers face in France at both the borders and the préfectures.
The case of Ali Iqbal reveals the kinds of problems that can occur under
the existing rules. Iqbal, a twenty-six-year-old Pakistani national, sought
asylum in March 1996 in the U.K., citing a fear of persecution based on
his involvement in Kashmiri separatism. Because he had traveled through
France en route to the U.K., British authorities, citing the "safe third
country" rule, returned Iqbal to France, where he was detained and almost
deported before he was able to access the asylum procedure. The following
are excerpts of the London-based Refugee Legal Centre's (RLC) account of
the case:
[Iqbal] said he had traveled from Pakistan, by car, with an agent who
held a false passport for him. Whilst uncertain of his route he believed
he had crossed Turkey, Greece and Italy before entering France. He remained
in a safe house in France (almost certainly Paris) for 2-3 weeks before
coming to the UK. He was provided with another false passport, a Dutch
one, before he was put on the Eurostar train to London. He said he had
been advised by his agent that he should not try to claim asylum in France
because the French authorities would send him back to Pakistan.
The [UK] Secretary of State certified that the case was "without foundation"
on safe third country grounds, and stated that Iqbal was readmissible to
France (on the basis of an informal readmission agreement between the UK
and France, the so-called "Gentleman's Agreement" of 20 April 1995). Iqbal
appealed against the decision to remove him to France, and was detained
pending the hearing of his appeal.
. . . .
[Iqbal's administrative appeal was denied and on 10 April 1996, leave
to apply for judicial review was also refused.] Removal directions had
already been set for the evening of that day. [RLC] contacted a French
lawyer, Christian Bourguet, who agreed to take the case; [RLC] faxed him
case documents. . . . Dr. M [a friend of Iqbal] had given Iqbal sufficient
cash to survive in France for a few days. Ms. Z [another Iqbal friend]
went to see Iqbal whilst he was awaiting removal at Waterloo. Whilst she
was there [RLC] spoke to him on the phone and made it clear that he had
to ask repeatedly for asylum from the moment of arrival. [RLC] faxed him
our standard document, in French (explaining that his application for asylum
in the UK had not been considered substantively), a list of contacts including
Bourguet's details, and a copy of the determination. Ms. Z confirms that
these were passed to him by the Immigration Service.
Following Iqbal's return to France, Christian Bourguet sent a bundle
of case papers to RLC. These show that Iqbal had been arrested on arrival
at Gare du Nord and detained under a provision of French law related to
illegal aliens . . . .
The police records show clearly that he asked for asylum and that the
police were aware that he had been removed from the UK to France on third
country grounds. Despite this, removal directions to Pakistan were set
without any consideration whatever of his request for asylum. The case
was not referred to the competent authority (the Ministry of the Interior,
for claims at the border), and there was no asylum interview of any kind.
His attempt to claim asylum was simply ignored. Furthermore, the Orders
of removal (and detention pending removal) were served on Iqbal without
an interpreter present, in flagrant violation of French law. These breaches
are evident on the face of the police documents. He was therefore unaware
of the import of these orders, and of the appeal rights which the documents
of service contained...
[Iqbal then managed to contact Bourguet, who launched parallel legal
challenges against the detention and deportation orders. His appeal against
the deportation order was denied, but the challenge to the detention order
was successful and Iqbal was released.]
Accompanied by Bourguet, Iqbal then tried to get the necessary asylum
application form from the préfecture, so he could lodge his
asylum claim with the competent authority (OFPRA). The police refused to
issue him with a form, citing his lack of (a) identity documents and (b)
any legitimate address. Having spent many hours preparing papers and attending
Court, without any payment, Bourguet was unable to do more. He therefore
advised Iqbal to go to France Terre d'Asile (FTDA), an NGO, for assistance
in obtaining the application form from the préfecture. He
went there, but was unable to gain assistance.
With the money he had, Iqbal was able to find lodgings with a family
about 20 miles outside Paris. Dr. M. sent him more money. When Iqbal's
ID finally arrived in London, Dr. M forwarded it to Bourguet. On 22 April
Bourguet wrote directly to OFPRA urging them to ignore the usual procedures
(since the police were refusing to issue the appropriate documents) and
allow Iqbal to make an asylum claim.
On April 23 or 24, Iqbal went to the préfecture again,
taking with him proof of his residence and the ID document. As he was afraid
to go alone in case he was arrested and sent back to Pakistan, he was accompanied
by Bourguet's secretary. The préfecture again refused to
issue him with an application form on the ground that he was not residing
in central Paris. They said he must move into the area, and that he could
not get a form from a Préfectoral office near where he was staying.
They also said he had to give evidence that someone in France was supporting
him financially.
. . . .
On May 3 the préfecture wrote to Iqbal requiring him to
attend their offices on May 9, at 8:30 a.m. He went there with David Boratov
of FTDA, apparently expecting to be given the asylum application form previously
denied him. Instead he was arrested and given a detention order, authorizing
his detention (again under [a legal provision related to illegal aliens]),
and was sent to the detention centre at Vincennes, pending removal to Pakistan
(FTDA apparently reported to Bourguet that the flight was to leave on 10
May). Bourguet immediately wrote to RLC by fax asking [it] to seek the
intervention of the Home Office to prevent this refoulement.
Bourguet telephoned [RLC] later on the same day. He informed [RLC] that
he was notified by ANAFE (an NGO which operates at airports) that Iqbal
had been taken to Roissy airport that morning (i.e. 9 May) for immediate
removal to Karachi. The authorities attempted to remove him on a plane
due to leave at 12:35. He told [RLC] that Iqbal had refused to board the
plane and the attempt to remove him was unsuccessful.
Ms. Z subsequently reported to [RLC] a telephone conversation she had
with Iqbal on the evening of 9 May, and further information about the attempted
removal was later provided by FTDA in David Boratov's fax to [RLC] of 29
May. Iqbal complained that the French authorities had used violence against
him before and during the removal attempt. He resisted but was forced on
to the aircraft. He was so distressed, and the passengers on the plane
so shocked, that the Captain of the plane refused to take responsibility
for him, and ordered the French authorities to take Iqbal off the plane.
In the meantime FTDA had contacted the press. A spokeswoman from the
Ministry of the Interior telephoned FTDA and told them the authorities
had decided to abandon their efforts to remove Iqbal, and that he would
finally be allowed to claim asylum in France. This assurance was given
at the very time when the attempt to remove Iqbal was taking place at Roissy.
Following this attempted refoulement, the Ministry of the Interior agreed
that Iqbal could lodge his asylum claim. Despite this decision, the Removal
Order remained in force.
. . . .
Iqbal was summoned to attend at the préfecture on 15 May.
Prior to this appointment FTDA interviewed Iqbal about his fear of persecution
in Pakistan and prepared a written statement in French. This was because
FTDA anticipated that the priority procedure would be applied to Iqbal,
and that there would be no interpreter available at the préfecture
and
therefore he would not be properly interviewed before his application was
sent to OFPRA. Furthermore, generally OFPRA expects asylum applications
to be submitted in French. David Boratov of FTDA accompanied Iqbal to the
préfecture
on 15 May and took the statement with him. At the
préfecture,
Iqbal was not provided with an interpreter. He was merely told to write
his application out in Urdu and had only about 15 minutes to do this. The
officer refused to accept the written statement from Boratov. Normally
OFPRA will not accept such a statement submitted separately from the application
form; however, Boratov contacted OFPRA later and they agreed, exceptionally,
to consider the statement, which was then sent to them.
On 24 May Iqbal was issued with a certificate of registration issued
by OFPRA . . . which effectively placed him in the normal procedures .
. . . This document normally entitles an asylum applicant to a temporary
residence permit, renewable pending the determination of the application.
On 29 May Boratov and Iqbal returned to the préfecture
to request that the residence permit be issued. However, the préfecture
refused
to issue the permit because the expulsion Order was still in force.
(47)
According to Christian Bourguet, Iqbal's lawyer, Iqbal's refugee status
application is still pending with OFPRA. (48)
In September 1996, another Pakistani asylum seeker returned to France
from the U.K. faced similar treatment. On September 3, 1996, Sajjad Saeed
was sent from the U.K. to France, re-entering French territory at Calais.
He had several documents indicating his wish to seek asylum, and a French
lawyer, retained on his behalf by the Refugee Legal Center in London, contacted
border police at Calais to inform them of his request. Nonetheless, upon
arrival at Calais, Saeed was placed immediately in custody. The next day,
the préfecture of Calais issued a deportation order based
on Saeed's unlawful entry into the territory. Like Iqbal, Saeed was placed
in administrative detention pursuant to article 35 bis of the Law of 1945,
the provision of French law relating to detention of illegal aliens. On
September 5, 1996 he was brought before a judge to review the lawfulness
of his detention, which the judge extended because Saeed lacked identity
documents. On September 10, Saeed was transferred to Paris and taken to
the Pakistani embassy. Because the embassy refused to issue him a laissez-passer,
he was unable to take a September 11 flight to Pakistan on which the French
authorities had reserved him a seat. On September 11, he was released from
detention because the lawful period for such detention had expired. He
then made contact with FTDA, which assisted in the preparation of his asylum
claim and in making arrangements for an appointment at the préfecture
of
Paris in order to register that demand. Because FTDA and others working
on the case thereafter lost contact with Saeed, we do not know whether
his claim was ever registered. In subsequent correspondence with British
immigration authorities, officials of the French Ministry of Interior claimed
that the record of Saeed's interview with the authorities at Calais indicated
that he did not wish to seek asylum and that he agreed to being deported
to his country of origin. This assertion is contradicted by the statements
made to the Calais authorities by Saeed's lawyer, and by Saeed's subsequent
efforts to submit his claim for asylum with the assistance of FTDA.
(49)
A representative of FTDA responsible for assisting asylum seekers in
submitting their claims reported that in December 1996 she sent an Afghan
woman to the préfecture at Creteil to obtain her provisional
residence permit and asylum application form. The woman returned to the
reception center and reported that préfecture officials had
refused to give her the permit or form, but that since she did not speak
French and there were no translators available, she did not understand
why they had refused. The France Terre d'Asile representative then telephoned
the préfecture, where an official told her that the provisional
residence permit and application forms had been withheld because the woman
lacked a passport (the false one under which she had traveled to France
had been confiscated by the French border police) and her other documents
reflected two different birthdates (probably attributable to the different
calendar utilized in Afghanistan). The France Terre d'Asile representative
offered explanations and the asylum seeker subsequently received permission
to remain in the territory and to apply for asylum.
(50) Without such intervention, this asylum seeker would have
had little hope of gaining access to the procedure.
The instances of nonfeasance, misfeasance, and malfeasance by border
and préfecture officials described above raise serious concerns
about access to the French asylum procedure. Under international standards
relating to asylum practices, "[t]he competent official (e.g., immigration
officer or border police officer) to whom the applicant addresses himself
at the border or in the territory of a Contracting State should have clear
instructions for dealing with cases which might come within the purview
of the relevant international instruments. He should be required to act
in accordance with the principle of non-refoulement and to refer such cases
to a higher authority." (51) French policies
and practices sometimes fall below this standard, creating a dangerous
risk that those legitimately seeking asylum from persecution will be summarily
returned to their country of origin with little or no consideration of
their asylum claim. The problem is seriously exacerbated by the systematic
inadequacy or unavailability of interpretation services at the borders
and préfectures. These issues should be a priority for reform
of French asylum policies and practices. Unfortunately, they figure nowhere
in proposals currently under consideration.
Notwithstanding the problems noted above, most asylum seekers make it
past obstacles at French borders and at the préfectures and
obtain the one-month permit to remain in France while they prepare their
refugee status application for the regular OFPRA procedure. While asylum
seekers who are admitted to the normal asylum procedure stand a better
chance of proper adjudication of their claims than do those screened out
at the borders and préfectures, Human Rights Watch/Helsinki
has identified a number of serious defects in the procedural rights they
enjoy.
UNHCR guidelines indicate that asylum seekers must be given the guidance
necessary for submitting an application to the relevant authorities. To
submit an application in France, asylum seekers must complete the form
provided by the préfecture authorities and send it to OFPRA.
Instructions for the form are available only in French, English, and Spanish.
Moreover, these instructions request that the asylum seeker complete the
form in French, although OFPRA officials told us that they will accept
applications and documentation in any language. (52)
Free legal assistance is not available for OFPRA proceedings, and few asylum
seekers are represented at this stage of the procedure.
(53) In many cases, the written application is an asylum seeker's
best chance to make his or her case, because OFPRA conducts interviews
of only 50 percent of asylum seekers. (55)
The inadequacy of information and assistance provided to asylum seekers,
in a procedure that is largely conducted on paper, prejudices many of their
cases. Many asylum seekers do find assistance from France Terre d'Asile,
a non-governmental organization that runs reception centers in which many
asylum seekers live, and from other refugee assistance organizations. The
difference in the success rates of those asylum seekers assisted by France
Terre d'Asile is telling. Approximately 99 percent of applicants assisted
by FTDA get an interview with OFPRA, as compared to 50 percent for asylum
seekers generally. Even more striking, 50 percent of those assisted by
FTDA obtain refugee status in France, as compared to 17 percent for all
asylum seekers. (56)
OFPRA Director Jean-François Terral argues that the difference
reflects mere self-selection among asylum seekers. He told Human Rights
Watch/Helsinki:
My opinion is that the good cases go to those specialized structures.
Those who use the procedure to stay, don't go to those structures. It's
quite clear. The poor Chinese peasant who comes to France under control
of the mafia won't go to France Terre d'Asile; and if he wanted to, he's
not free to. The Romanians, also. If they file a claim for asylum, they
get an additional FF2000 [approximately US $340], which is very interesting
to them. After maybe six months in appeal they are refused. In some cases
they are sent back. And in many cases they will come back. Obviously it
is not in their interest to go to France Terre d'Asile. They stay in houses
by themselves. They stay outside of the official structures for as long
as possible. The Chinese, when by exception they have a very good file--we
are happy when we find those people--go to France Terre d'Asile.
(57)
Regarding OFPRA's policy of interviewing only select asylum seekers,
Terral told Human Rights Watch/Helsinki that when he started at OFPRA last
year, he thought they should interview all applicants, but that he had
since changed his mind. He explained:
When I came to the office, I thought [interviewing all applicants] was
the right idea. Now, I think it is the wrong idea. OFPRA is organized by
region and all of the files are seen by the head of the division or deputy
and they decide about the interview. Some nationalities always get an interview,
for example, Turkey, Sri Lanka, Iran, Iraq, and some others--certain nationalities,
where we know there is always a need to go very deeply. Others, we look
at the file and it depends on what's there. I have opened many of the files
and there is nothing. It is a bad use of state money to have interviews
in every case. For example, with the Chinese, the quality of the files
is very low. And we know that most of the guys come in a very bad way.
The demand is always the same way, made in very poor words. We must be
cautious, so from time to time we make an interview during one week and
we make our control. They will say that they are for democracy and that
they were in Tiananmen. Then we ask more questions and he knows nothing
about Tiananmen and democracy. Obviously these are poor peasants acting
through illegal mafia. We feel we are being more true to the Geneva Convention
to spend our money this way. (58)
Although probably accurate in the case of some asylum seekers, Terral's
arguments disregard the ways in which French asylum practice and procedure
are stacked against many asylum seekers. Given that France requires visas
for nationals of nearly every refugee-producing country and that, owing
to their feared persecution, many asylum seekers are unable to obtain such
travel documents, one can hardly hold it against them if they have to look
to criminal gangs to ensure their escape. Similarly, given that asylum
seekers often lack legal assistance, information about the procedure, and
translation services, it is not surprising that one opens "many of the
files and there is nothing." The remedy--a personal, in-depth interview
with an official competent in asylum matters--is systematically denied
to half of all asylum seekers.
Regarding OFPRA's interview policy, Terral explained further, "We feel
safe to act this way because we have a safety net--90-95 percent of negative
decisions go to the CRR, and there he is always present before the court,
present before the court and lawyers." (59)
Unfortunately, monitoring CRR hearings for two afternoons, we discovered
several substantial holes in this safety net. (60)
CRR proceedings hardly constitute serious interviews. They commence with
a brief summary of the case presented by a rapporteur. If the applicant
is represented, then the lawyer makes a brief statement, followed by questions
put to the lawyer and/or the asylum seeker. The whole proceeding lasts
on average twenty-five minutes. Only those who have entered the French
territory legally are entitled to free legal assistance. The others must
hire lawyers with their own funds or represent themselves. At only half
of the hearings we attended were the applicants represented. The CRR will
only accept documentation that has been translated into French and such
translations must be made at the asylum seeker's expense. At CRR hearings,
interpretation services are available but they are inadequate. We observed
that interpreters rarely translated any part of the proceeding other than
questions put directly to the asylum seeker. Many asylum seekers are therefore
ignorant of statements of the rapporteur, lawyer, or judges that they could
either support or rebut.
Questions put to asylum seekers by the CRR panelists are often only
indirectly related to the merits of their asylum claim. In some cases,
these questions were rude and abusive; they were certainly not designed
to elicit stories that, even in the best of circumstances, refugees might
find difficult to relate. The judges repeatedly asked asylum seekers about
their travel routes and why they had not sought asylum elsewhere. For example,
we observed the hearing of an Algerian asylum seeker whose mother had allegedly
died in police custody. After pressing the asylum seeker for documentation
regarding his military service, as well as his mother's death, which he
did not have, the president of the CRR panel retorted, "Did you think that
you could come to France to claim asylum without any documents to show?"
The president then noted that the asylum seeker's father lives in France
and goes to Algeria for two weeks every year, with no problems except that
he is shaken down for money by Islamist groups. In response, the asylum
seeker explained that his father lives in France and wants to reunite his
family there. To that, the president commented to her colleagues in open
court, "It's okay to accept Algerians, but this one, no. We have enough
like that. Your father should go back and fight for liberty and democracy.
That's what an Algerian should do." (61)
We also observed the hearing of the case of a Congolese man who first
sought asylum in France in 1989. He claimed that he had been arrested,
detained, and tortured in the Democratic Republic of Congo (then Zaire)
in 1988. After he was released, he stated, his house was searched and he
knew he was wanted by the authorities, so he fled to France. In 1990, OFPRA
rejected his claim without the benefit of an interview. In 1991, he requested
review of his claim, citing new facts including more details of his arrest,
the claim that he had been involved in union activities, and evidence that
after he left Zaire, his brother and uncle were arrested, tortured, and
killed. His claim was denied again. The hearing we attended was convened
to consider a second request to review the case, this time presenting a
new medical certificate supporting his claim of torture. The president
of the panel only asked how he had been able to live in France since 1989.
When the asylum seeker's lawyer explained that he had worked legally until
1991 (when he had the right to do so), and then he worked illegally until
1993, after which he relied on the support of friends. The president responded,
"That's the problem in France now." (62)
In another Congolese case, the asylum seeker sought asylum in France
when he was apprehended by French authorities while traveling through France
en route to Belgium, where, due to family connections, he intended to claim
asylum. Pressing him about his travel route, the president asked, "Why
didn't you go to Belgium directly from Congo? You'd have a better chance
in Belgium. If you get refugee status will you go to Belgium?" The asylum
seeker said that he did not really care about which country; that he had
a visa to Italy and that friends in Italy told him that he should travel
through France to reach Belgium; and that in the process of following those
directions, he had been apprehended in France. Later in the hearing, when
the asylum seeker made reference to contact he had had with Belgians running
a school in his village, the president interjected, in apparent disregard
of France's commitments under the Schengen agreement, "That makes me think
again that your real reception country should be Belgium."
(63)
The UNHCR handbook prescribes the kind of fact-finding necessary for
asylum determinations. It calls for "one or more personal interviews,"
providing the examiner an opportunity "to gain the confidence of the applicant
in order to assist the latter in putting forward his case and in fully
explaining his opinions and feelings." It cautions examiners against being
"influenced by the personal consideration that the applicant may be an
'undeserving case.'" And, noting the difficulty of documenting an asylum
claim, the handbook stipulates that examiners should, when no other evidence
is available, give asylum seekers the benefit of the doubt.
(64)
OFPRA procedures do not meet this standard, and CRR review is no remedy.
The procedures in both institutions need to be overhauled to ensure that
asylum seekers receive information about the procedure and assistance in
navigating it. All such information and assistance should be made available
in a language with which the asylum seeker is familiar, through written
or oral translations. OFPRA should provide an opportunity for each asylum
seeker to be heard in a personal interview. And the CRR should provide
complete and professional translation services.
In addition to the procedural problems identified above, Human Rights
Watch/Helsinki has a number of concerns relating to the substantive law
of asylum as applied by the French authorities. Lawyers and advocates for
asylum seekers report an increasingly restrictive interpretation of the
Refugee Convention that makes it virtually impossible for certain categories
of refugees to be recognized as such in France. Three issues of particular
concern are discussed below.
Membership in a Particular Social Group
The Refugee Convention guarantees protection for those who fear persecution
due inter alia to their membership in a particular social group. France
employs a narrow interpretation of this criterion, maintaining, for example,
that Roma and homosexuals targeted by repressive laws and practices in
Romania are not members of a social group deserving refugee protection.
(65) In 1996, OFPRA granted refugee status to only 1 percent
of the 3,356 Romanian asylum cases it adjudicated.
(66) Director Terral cited this low acceptance rate as evidence
that conducting interviews in these cases is generally a waste of OFPRA
resources. The exceedingly low acceptance rate reflects not only the quality
of Romanian asylum claims, however, but also France's abdication of its
responsibilities under the Refugee Convention toward certain categories
of Romanian refugees.
Persecution by Non-State Agents
French jurisprudence interprets the Refugee Convention to protect only
those who fear persecution by state authorities or with their tacit approval.
(67) This interpretation of the convention arbitrarily excludes
those who fear persecution by armed groups from whom their government cannot
protect them. It also prevents protection of those victimized in situations
where governmental authority has simply collapsed. There is no basis for
this jurisprudence in either the letter or the spirit of the Refugee Convention
and the UNHCR has criticized it. (68) Nonetheless,
it has had a significant effect on French asylum practice, most notably
preventing many Algerians from obtaining protection in the face of persecution
by armed Islamist groups. In 1996, OFPRA granted refugee status to only
4.5 percent of the 1,080 Algerians whose claims it considered.
(69) While Algerians are probably the largest group currently
victimized by this policy, it has also constituted a bar to refugee protection
to, for example, Somalis fleeing their anarchic state and Russian Jews
targeted by antisemitic groups. The following cases illustrate the devastating
impact this policy can have.
Sasha Smirnov (70)
A Russian Jew who was repeatedly attacked by militants of the Popular
Russian Front, Sasha Smirnov fled to France and sought asylum. He claimed
that before he fled there had been four incidents in which he was beaten
and threatened with death if he did not leave the neighborhood. He was
twice hospitalized with broken bones. In the final attack, his assailants
strangled him with a cord until he lost consciousness, ransacked his apartment,
and set it afire, leaving him there to perish in the flames. Fortunately
he regained consciousness in time to escape. Smirnov reported each of the
attacks to the police. Although they assured him that they would take action,
there was no sign that the attacks would abate; in fact, they escalated
and posed a real threat to his life. Smirnov produced medical records,
as well as a police report, to substantiate all of his claims. In denying
his request for refugee status, OFPRA did not question the factual basis
of his claim, but rather, found no obligation to protect him under the
Refugee Convention. Its decision stated:
[Smirnov] presented many medical certificates attesting to the attacks
he suffered, as well as an attestation from the police, summarizing the
several complaints that he made to their local bureau. In his OFPRA interview,
[Smirnov] made no statement of personal political involvement or activity,
nor of persecution by actual Russian authorities. Moreover, no element
permits us to conclude that the attacks that he suffered at the hands of
the nationalist militants were either tolerated or encouraged by the authorities
of his country of origin, nor that they have refused him protection. Therefore,
his situation does not warrant protection under the Geneva Convention.
(71)
Sama Nur (72)
Nineteen-year-old Sama Nur fled her native Somalia with her mother and
siblings and sought asylum in France. In her refugee status application,
she claimed that her father had been an army officer and prominent government
minister between 1988 and 1990, but that as a member of the government
of Siad Barre, he had been arrested and detained by rival ethnic groups
after Barre's fall in 1991. After her father's arrest, the rest of the
family fled Mogadishu for Bosaso. They remained there for one year, but
being constantly harassed, they fled on to Yemen. In April 1993, she returned
to Somalia and was, on arrival in Bosaso, arrested by militia loyal to
General Aideed and detained for three months, during which time she was
mistreated and raped. In July 1993, she escaped and fled to Yemen, where
she rejoined her family and then fled to Europe. Denying her claim for
asylum, the CRR held:
Considering that, given current conditions in Somalia, the fears expressed
by its nationals are a function of the general climate of insecurity prevailing
in the country, where, after the disappearance of the legal government,
the clans and sub-clans and factions of the same ethnicity fight to create
zones of influence within the country, without ever exercising in these
zones the degree of organized authority that would permit us to consider
them as de facto authorities; that the fears cannot, therefore, be considered
fears of persecution in the sense of the provisions of the Geneva Convention,
which require for the recognition of refugee status the existence of a
personal fear of persecution emanating from the authorities of the country
of which the asylum seeker is a national, or encouraged or knowingly tolerated
by those authorities; therefore, even assuming that the facts alleged could
be established by the appellant, the appeal cannot be accepted.
(73)
The interpretation of the Refugee Convention used to deny these asylum
seekers protection they clearly need stands in stark contrast to the UNHCR's
views on the issue. Regarding agents of persecution, the UNHCR handbook
unequivocally states:
Persecution is normally related to action by the authorities of a country.
It may also emanate from sections of the population that do not respect
the standards established by the laws of the country concerned. A case
in point may be religious intolerance, amounting to persecution, in a country
otherwise secular, but where sizeable fractions of the population do not
respect the religious beliefs of their neighbors. Where serious discriminatory
or other offensive acts are committed by the local populace, they can be
considered as persecution if they are knowingly tolerated by the authorities,
or if the authorities refuse, or prove unable, to offer effective
protection. (74)
Under French jurisprudence, no refugee protection is available where
the government in the country of origin has simply collapsed or otherwise
failed to protect the asylum seeker. This position violates the Refugee
Convention and puts those rejected on these grounds at serious risk.
France has a limited program of providing temporary protection to certain
categories of asylum seekers. The temporary protection regime is not based
in law, but in a number of ministerial circulars and directives providing
for ad hoc non-refugee protection. The primary beneficiaries of the regime
have been those fleeing the conflict in Bosnia and Hercegovina, who were
not otherwise eligible for refugee status, and some Algerians who have
fallen afoul of the restrictive jurisprudence on agents of persecution
discussed above.
Human Rights Watch/Helsinki has identified several problems with France's
temporary protection regime. First, providing only renewable three- or
six-month provisional residence permits, in many cases without the right
to work or enjoy social benefits, the regime falls short of ensuring the
protection mandated by the Refugee Convention. (75)
As such, it must not be used--as it often is with Algerians--as a cheap
substitute for refugee status, a status denied only because France refuses
to apply the Refugee Convention properly. The concept of temporary protection
was developed by the UNHCR to address the practical difficulties presented
when a country experiences a mass influx of asylum seekers in need of protection.
The policy was designed to enable countries to provide temporarily the
protection needed until a permanent solution could be found, without overburdening
their asylum procedures. (76) Human Rights
Watch/Helsinki has observed a dangerous trend in Europe toward perversion
of the temporary protection concept. As western European countries pursue
increasingly restrictive interpretations of the Refugee Convention in their
asylum decisions, they are nonetheless constrained by binding prohibitions--in
the European Convention on Human Rights, as well as in the Refugee Convention--against
returning people to countries where they risk persecution, torture, or
inhuman or degrading treatment or punishment. To avoid breaching these
obligations, a number of countries, including France, have employed temporary
protection regimes, which, while avoiding refoulement, deprive refugees
of social rights to which they are entitled under the Refugee Convention
and prolong the hardship they have suffered by living in uncertain and
insecure circumstances. Thus temporary protection risks becoming a subsidiary
form of protection for the victims of an overly restrictive interpretation
of the Refugee Convention. This is a wholly unacceptable application of
the temporary protection concept. The solution is for France, and other
European countries, to step up to their obligations under the Refugee Convention--particularly
to victims of non-state persecution--and reserve temporary protection for
the truly mass influx situations for which it was designed.
Another problem with the temporary protection regime is that such protection
is accorded in a secretive and seemingly arbitrary procedure. When OFPRA
concludes that due to its restrictive interpretation of the Refugee Convention
it cannot grant refugee status to certain applicants who nonetheless require
protection--notably Algerians, Somalians, and Liberians--it can refer these
cases to a special committee consisting of representatives of the Ministry
of Interior, Ministry of Social Affairs, and Ministry of Foreign Affairs.
This committee then decides whether the applicant will obtain temporary
protection. (77) There is no way for an
asylum seeker to know the criteria by which temporary protection is accorded.
OFPRA Director Terral described the procedure as "secret," stating further:
I can't say anything about the criteria, but all [Algerian] journalists
have benefitted. The numbers are much higher than anyone imagines. We prefer
to be criticized and remain closed. I consider we do what we have the duty
to do. I don't have to be talkative. If in OFPRA we get a request that
we can't recognize, but if it is a serious problem then it goes to the
other procedure. (78)
Without transparency, the French temporary protection program risks
appearing arbitrary. Indeed, French human rights groups complain that in
practice, they see arbitrary distinctions, not only between those who get
temporary protection and those who do not, but also in the length of the
temporary protection permits and the benefits that accompany them.
(79)
On July 31, Patrick Weil delivered his report and proposed reform of
immigration and asylum policies and practices to Prime Minister Jospin.
One section of the report was devoted to asylum issues. At this writing,
the government is considering the Weil report and is expected to submit
draft legislation to the National Assembly by the end of October. On the
question of asylum, the government's current draft follows Mr. Weil's proposals
closely.
The Weil report recommends a number of reforms aimed at fortifying the
right to asylum by clarifying the distinction between asylum and immigration,
and eliminating incentives for economic immigrants to abuse the asylum
procedure. To this end, the report recommends: (1) consolidating all laws
relating to the right of asylum in one section of the 1952 law establishing
OFPRA; (2) creating two new categories of subsidiary protection for those
requiring protection but falling outside of the narrow definition of convention
refugee prevailing in French jurisprudence; (3) providing OFPRA interviews
for all applicants, reforming CRR procedures, and improving integration
for recognized refugees; and (4) countering abuse of the procedure by applying
priority procedures to claims made by those from countries for which OFPRA
has concluded that refugee status may be withdrawn.
(80) The government's draft text would adopt all of these proposals
except those relating to procedural reform. While some of these proposed
changes are a welcome improvement, Human Rights Watch/Helsinki believes
that they fall short of the reform needed to bring French asylum policy
in line with its international commitments.
Much of the government's draft legislation on asylum is devoted to implementing
Mr. Weil's proposal to consolidate asylum provisions in one law. Although
this consolidation may clarify the law, it will do little to eliminate
the blurring between immigration control and refugee protection that occurs
in practice at French borders, waiting zones, and préfectures.
Officials working on France's front line against illegal immigration must
distinguish between economic immigrants and asylum seekers and unconditionally
accord the latter access to the asylum procedure. Both the Weil report
and the government's draft legislation are unfortunately silent on questions
of access to the asylum procedure. (81)
As discussed in this report, we believe that there are substantial problems
with the discretion exercised by border and préfecture officials--lawfully
and unlawfully--to inhibit access to regular asylum procedures. Measures
to circumscribe that discretion should be included in the proposed reform
of asylum policies. The reform effort should also be expanded to include
necessary changes in administrative practices at the borders and préfectures
to improve access to the asylum procedure and provide asylum seekers with
the procedural guarantees to which they are entitled.
The Weil report accurately describes prevailing French jurisprudence
on the Refugee Convention as contrary to France's principles. Unfortunately,
it does not acknowledge that this jurisprudence is also contrary to the
Refugee Convention. Moreover, neither the Weil report nor the government's
draft legislation proposes to restore the proper interpretation of the
convention in French law. Rather, both the report and the draft law would
create two new protection statuses. As currently conceived in the government's
draft law, the first status would cover those persecuted because of their
"activities in support of freedom," as referenced in the preamble to the
French constitution. OFPRA would have sole authority to recognize those
falling in this category and could accord them the same status as convention
refugees. The second new status proposed would cover those who would, if
denied permission to remain in France, be exposed to inhuman or degrading
treatment or would face a major risk to personal security. This second
group of asylum seekers would, upon a decision of the Minister of Interior,
be entitled to temporary non-refugee protection, consisting of a residence
permit lasting up to one year and the right to work.
Although these proposals address a defect in existing French asylum
law, they do not bring it into compliance with governing international
standards. Some of those excluded from refugee protection because they
fear persecution by non-state actors would be recognized as refugees under
the proposed law because they could demonstrate a threat of persecution
resulting from their "activities in support of freedom." Others excluded
because of France's restrictive interpretation of the Refugee Convention
would not meet that criterion, however, and under the proposed reform,
they would receive only temporary non-refugee protection. The government's
draft provision creating this temporary non-refugee protection has clearly
been inspired by article 3 of the European Convention on Human Rights,
which has been interpreted to prohibit states from sending someone to a
country where they face a real risk of being subjected to torture or inhuman
or degrading treatment or punishment. While we welcome France's explicit
recognition of its obligation under the European Convention, it does not
excuse derogation from the Refugee Convention. Many of those who would
benefit from this new status are entitled to the traditionally more durable
convention refugee status. Instead, they would receive temporary protection
for up to one year. The Ministry of Interior would apparently retain the
discretion to give temporary residence permits for shorter periods of time.
The guarantee of a work permit is a welcome improvement over the current
temporary protection regime. At the same time, the proposed new status
falls short of convention refugee protection, which comes with a full range
of social rights and can only be withdrawn upon an individualized assessment
taking into consideration reasons for continued protection arising out
of past persecution. (82) Our concerns
are amplified by the apparently wide discretion that the proposed law would
accord the Ministry of Interior in its decisions regarding this temporary
non-refugee status. In particular, the proposed law says nothing about
the procedure the ministry must follow in reaching its decisions regarding
this status, nor whether negative decisions would be subject to a right
of appeal and the right to remain in France pending that appeal. In short,
the proposed reform can only be called a modest improvement on the current
temporary protection regime discussed earlier in this report. Specifically,
it implicitly condones a restrictive interpretation of the Refugee Convention
that finds no support in the text of the convention and has been criticized
by the UNHCR; it substitutes temporary non-refugee protection for convention
refugee status; and it leaves open the possibility for the continued appearance
of arbitrariness in ministry decisions regarding temporary non-refugee
protection.
The Weil report contains some important recommendations regarding the
asylum procedure. These measures have been omitted from the government's
draft law, but could still be taken up as part of administrative reform.
Human Rights Watch/Helsinki urges the government to do so. In this regard,
we welcome Mr. Weil's recommendation that OFPRA conduct interviews of all
asylum seekers. This proposal addresses one of the most serious problems
with existing practice. We note that the right to an OFPRA interview should
extend to asylum seekers in the accelerated or priority procedure, as well
as those in the regular asylum procedure. Human Rights Watch/Helsinki also
welcomes Mr. Weil's proposal for reform of the CRR, although the elements
of that reform remain vague. We urge any commission convened to study reform
of the CRR to consider carefully the findings and recommendations contained
in this report.
The Weil report's final proposal in the asylum field was to call for
priority procedures in all cases in which the applicant's country of origin
is one for which OFPRA has concluded that it may withdraw refugee status.
The government has accepted this proposal, which would effectively import
into French law the "safe country of origin" rule endorsed by E.U. member
states in two 1992 resolutions. (83) The
proposed law would create a rebuttable presumption against asylum seekers
from particular countries. By definition, such rules impinge on an asylum
seeker's right to an individualized assessment of his fear of persecution.
Under governing international standards, asylum seekers from "safe countries
of origin" must have a meaningful opportunity to defeat the presumption
against them. At present, French procedures do not provide this opportunity.
Applicants subject to the proposed rule must have access to information
and adequate interpretation services at the préfectures;
they must have an opportunity for an interview with OFPRA; and they must
have the right to appeal negative decisions to the CRR and to await the
outcome of their appeal in France. In the absence of such additional procedural
reforms, the proposed rule would run afoul of France's international commitments.
Human Rights Watch/Helsinki welcomes Prime Minister Jospin's willingness
to revisit some of the restrictive asylum and immigration policies adopted
in recent years. The right to seek and enjoy asylum has been under assault
in France. In part, this has been a function of increasingly restrictive
asylum policies, often adopted in concert with France's E.U. partners.
Limitations on asylum rights in France can also be traced to a general
anti-immigrant atmosphere, which breeds suspicion of all foreigners, including
refugees. Prime Minister's Jospin's initiative offers an important opportunity
to reverse these trends. Human Rights Watch/Helsinki has identified several
priority issues for the reform. Of particular importance are (1) improved
access to the asylum procedure; (2) access to information and assistance,
including adequate translation services, necessary for submitting an asylum
claim; (3) personal OFPRA interviews in all asylum cases, including those
considered manifestly unfounded or subject to the priority procedure; (4)
an opportunity to remain in France pending all appeals, including those
from the priority procedure; and (5) amendment of prevailing interpretations
of the Refugee Convention that deny refugee protection for those persecuted
in circumstances where their government fails to protect them.
The Weil report identifies many of the concerns raised in this report,
but its recommended reforms do not adequately address them. The government's
current draft law, which draws heavily on the Weil report, also comes up
short. Its recodification of the aliens law to collect all asylum provisions
in one place is largely symbolic. Its proposed temporary non-refugee protection
for those fearing inhuman or degrading treatment or risk to personal security
would simply paper over defects in existing asylum jurisprudence. Mr. Weil's
proposal for interviews in all asylum cases is welcome and should be incorporated
into the government's proposed reform, together with other procedural reforms
recommended in this report. Without those procedural reforms, the government's
proposed codification of the safe country of origin concept raises a risk
of refoulement.
On the right track to reform, the Jospin government should take this
opportunity to bring French asylum policies in line with governing international
standards. Human Rights Watch/Helsinki urges careful consideration of its
recommendations to achieve that end.
The information contained in this report is based on a series of missions
to France between November 1996 and September 1997. The report was researched
and written by Elizabeth Andersen, a consultant to Human Rights Watch/Helsinki,
and it was edited by Holly Cartner, executive director of Human Rights
Watch/Helsinki, Wilder Tayler, general counsel of Human Rights Watch, and
Joanne Mariner, counsel for Human Rights Watch. Emily Shaw, an associate
with Human Rights Watch/Helsinki, provided production assistance.
Human Rights Watch/Helsinki would like to thank the numerous organizations
and individuals who shared their perspectives on the French asylum system.
We would also like to acknowledge the complete cooperation and assistance
of the French government. In this respect, we especially appreciate the
assistance of Jean-François Terral, director of OFPRA, and representatives
of the Ministry of Interior who met with us.
***
Human Rights Watch/Helsinki
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around the world.
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The staff includes Kenneth Roth, executive director; Susan Osnos, associate director; Michele Alexander, development director; Cynthia Brown, program director; Barbara Guglielmo, finance and administration director; Patrick Minges, publications director; Jeri Laber, special advisor; Lotte Leicht, Brussels office director; Susan Osnos, communications director; Jemera Rone, counsel; Wilder Tayler, general counsel; and Joanna Weschler, United Nations representative. Robert L. Bernstein is the chair of the board and Adrian W. DeWind is vice chair.
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1. Several European states, including France, have concluded the Schengen Agreement of 14 June 1985, committing them to take various steps toward the abolition of border controls between them. A parallel implementation agreement establishes rules for determining one and only one signatory state responsible for each asylum claim filed in their collective territory. These rules, which essentially codify the "safe third country" concept among the signatory states, have been in effect since March 1995. In 1990, E.U. member states concluded the Dublin Convention, which also codifies rules for determining the signatory state responsible for each asylum claim filed. The Dublin Convention came into force on September 1, 1997, at which time its rules replaced the asylum provisions of the Schengen system.
2. 0 Statistics provided to Human Rights Watch/Helsinki by OFPRA, April 1997.
3. 0 Convention relating to the Status of Refugees, art. 1(A). The text of the UNHCR statute varies slightly from the convention, most notably in its omission of any reference to persecution for reasons of membership of a particular social group.
4. Statistics provided to Human Rights Watch/Helsinki by OFPRA, April 1997.
5. 0 See Secretariat of the Inter-governmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia, Report on Temporary Protection in States in Europe, North America and Australia (Geneva: Secretariat of the IGC, 1995), pp. 101-05; Human Rights Watch/Helsinki interview, Jean-François Terral, director, OFPRA, Fontenay-sous-Bois, February 26, 1997. In some cases, it is also possible for an asylum seeker to apply directly to the Ministry of Interior for temporary protection.
6. 0 "Evaluation of Three Years' Application of Law on Carriers' Liability," Migration News Sheet, (July 1997), p. 4.
7. 0 Decree of 27 May 1982, art. 12.
8. 0 Law of 2 November 1945, art. 35 quater.
9. 0 Ministry of Interior, "Waiting zones in ports, airports and train stations, 1996 annual report," (Paris: Ministry of Interior, 1997) pp. 5-7.
10. 0 Ibid.; Human Rights Watch/Helsinki interview with Jean-François Terral, director, OFPRA, Fontenay-sous-Bois, February 26, 1997. Although no exact figures are available at this writing, Ministry of Interior officials report a jump in border applications in July and August 1997. Also, during those months, approximately 70 percent of those filing border applications were admitted to the territory to seek asylum. Human Rights Watch/Helsinki interview, Yann Dyèvre, head, Office of Cross-border Traffic and Visas, Ministry of Interior, Paris, September 26, 1997.
11. Ministry of Interior, "Waiting zones in ports, . . . ," p. 5. As previously noted, since a Council of State decision last year, an asylum seeker may not be denied access to the territory solely because he or she can be sent to a "safe third country." Accordingly, since that decision, all cases in which the applicant is sent to a safe third country cite both the "safe third country" rule and one of the other grounds as a basis for the decision. Amnesty International French Section, France Terre d'Asile, Droit d'asile en France: état des lieux (Paris: Amnesty International, 1997), pp. 22-23; Human Rights Watch/Helsinki interview, Yann Dyèvre, head, Office of Cross-border Traffic and Visas, Ministry of Interior, Paris, September 26, 1997.
12. 0 Institute of Human Rights, Catholic University of Lyon, The Prevention of inhuman and degrading treatment in France, (English extracts) (Lyon: Catholic University of Lyon, 1996), p. 24; Amnesty International and France Terre d'Asile, Droit d'asile en France . . . , pp. 22-23; Association nationale d'assistance aux frontières pour les étrangers (ANAFE), Zones d'attente des ports, des aeroports et des gares ferroviaires: visites des associations habilitées, rapport 1996-97 (Paris: Expressions, 1997).
13. Human Rights Watch/Helsinki interview, Yann Dyèvre, head, Office of Cross-border Traffic and Visas, Ministry of Interior, Paris, September 26, 1997.
15. 0 Statistics provided to Human Rights Watch/Helsinki by Asylum Legal Aid--Amsterdam, June 1997.
16. 0 Human Rights Watch/Helsinki interview, Patrick Delouvin, Amnesty International French Section, Paris, November 21, 1996; Human Rights Watch/Helsinki interview, Stephane Julinet, National Association for Assistance of Foreigners at the Borders (Association nationale d'assistance aux frontières pour les étrangers, "ANAFE"), Paris, November 20, 1996; Human Rights Watch/Helsinki interview, Olivier Guinabaudet, UNHCR, Paris, November 20, 1996.
17. Human Rights Watch/Helsinki interview, Stephane Julinet, ANAFE, Paris, November 20, 1996. Government officials told Human Rights Watch/Helsinki that forms used for these decisions are available in seventeen languages. Human Rights Watch/Helsinki interview, Yann Dyèvre, head, Office of Cross-border Traffic and Visas, Ministry of Interior, Paris, September 26, 1997. According to a representative of a non-governmental organization that regularly tours the waiting zones, however, the authorities generally use only the French-language forms. In fact, of all detainees interviewed by representatives of his organization in the course of regular visits conducted between June 1996 and April 1997, all received the form decisions in French except for one detainee who received a blank English version along with the French one. Human Rights Watch/Helsinki interview, Stephane Julinet, ANAFE, Paris, November 20, 1996; ANAFE, Zones d'attente des ports . . . , p. 30.
18. Decree no. 95-507 of May 2, 1995; Human Rights Watch/Helsinki interview, Olivier Guinabaudet, UNHCR, Paris, November 20, 1996.
19. 0 Human Rights Watch/Helsinki interview, Stephane Julinet, ANAFE, Paris, November 20, 1996.
21. 0 Human Rights Watch/Helsinki interview, Jean-François Terral, director, OFPRA, Paris, February 26, 1997; Human Rights Watch/Helsinki interview, Olivier Guinabaudet, UNHCR, Paris, November 20, 1996; Amnesty International, France Terre d'Asile, Droit d'asile en France..., p. 22.
22. Law of 2 November 1945, Art. 35 quater; Ministry of Interior, "Waiting zones in ports..." pp. 5-7.
23. Ministry of Interior, "Waiting zones in ports . . . ," p. 4.
24. Human Rights Watch/Helsinki interview, Yann Dyèvre, head, Office of Cross-border Traffic and Visas, Ministry of Interior, Paris, September 26, 1997.
26. Ministry of Interior, "Waiting zones in ports . . . ," p. 5.
28. 0 Human Rights Watch/Helsinki interview, Stephane Julinet, ANAFE, Paris, November 20, 1996; Human Rights Watch/Helsinki interview, Olivier Guinabaudet, UNHCR, Paris, November 20, 1996.
29. An office of France's administrative regions.
30. 0 Law of 2 November 1945, art. 31 bis.
31. Human Rights Watch/Helsinki interview, Jean-François Terral, director, OFPRA, Fontenay-sous-Bois, February 26, 1997.
32. 0 Human Rights Watch/Helsinki interview, Olivier Guinabaudet, UNHCR, Paris, November 20, 1996.
33. 0 Law of 2 November 1945, art. 31 bis; Refugee Convention, art. 31(1).
34. Human Rights Watch/Helsinki interview, Maxime Tandonnet, head of mission, European Affairs and Asylum Law, Ministry of Interior, Paris, September 26, 1997.
35. 0 The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status states that, "The applicant should be given the necessary facilities, including the services of a competent interpreter, for submitting his case to the authorities concerned." Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva: UNHCR, 1992), para. 192.
36. 0 Human Rights Watch/Helsinki interview, Gilles Piquois, lawyer, Paris, July 31, 1997.
37. 0 Schengen Implementation Convention, art. 29(2); Dublin Convention, art. 3(5).
38. 0 Resolution on a Harmonized Approach to Questions concerning Host Third Countries, 30 November - 1 December 1992, art. 3.
39. 0 Law of 2 November 1945, art. 31 bis
40. 0 Human Rights Watch/Helsinki interview, Jean-François Terral, director, OFPRA, Fontenay-sous-Bois, February 26, 1997.
41. 0 Human Rights Watch/Helsinki interview, Patrick Delouvin, Amnesty International French Section, Paris, November 21, 1996; Human Rights Watch/Helsinki interview, Anne Castagnos, France Terre d'Asile, Paris, November 21, 1996.
42. Human Rights Watch/Helsinki interview, Maxime Tandonnet, head of mission, European Affairs and Asylum Law, Ministry of Interior Paris, September 26, 1997.
43. 0 Human Rights Watch/Helsinki interview, Sylvia Celestin, communications officer, OFPRA, Fontenay-sous-Bois, February 26, 1997.
44. Human Rights Watch/Helsinki interview, Maxime Tandonnet, head of mission, European Affairs and Asylum Law, Paris, September 26, 1997.
45. According to a recent report by Amnesty International and France Terre d'Asile, applications subject to the priority procedure numbered 620 in 1995 and 581 in 1996. Amnesty International French Section, France Terre d'Asile, Droit d'asile en France . . . , p. 30.
46. 0 UNHCR, Handbook on Procedures . . . , paras. 192-200.
47. 0 Refugee Legal Centre, "Ali Iqbal: Case Summary" (1996); see also, France Terre d'Asile, "Note de synthese sur le cas de M. Ali Iqbal" (October 1996).
48. Human Rights Watch/Helsinki telephone interview, Christian Bourguet, lawyer, October 1, 1997.
49. 0 France Terre d'Asile, "Note de synthese sur le cas de M. Sajjad Saeed," (October 1996).
50. 0 Human Rights Watch/Helsinki interview, Nathalie Munter, temporary case worker, FTDA, Paris, February 25, 1997.
51. 0 UNHCR, Handbook on Procedures . . . , para. 192.
52. 0 Human Rights Watch/Helsinki interview, Sylvia Celestin, communications officer, OFPRA, Fontenay-sous-Bois, February 26, 1997.
53. Human Rights Watch/Helsinki telephone interview, Patrick Delouvin, Amnesty International French Section, September 22, 1997. Free legal assistance is available for appeal proceedings, but only for the minority of asylum seekers who enter the country legally. (54)
54. 54 France Terre d'Asile, Reception and Accommodation of Asylum Seekers in Europe, (Paris: France Terre d'Asile, 1997), p.26. This rule represents an impermissible penalty on undocumented asylum seekers. See Refugee Convention, Art. 31. '
55. 0 Human Rights Watch/Helsinki interview, Jean-François Terral, director, OFPRA, Fontenay-sous-Bois, February 26, 1997.
56. 0 Human Rights Watch/Helsinki interview, Daniel Tardiff, France Terre d'Asile, Creteil, November 22, 1996.
57. 0 Human Rights Watch/Helsinki interview, Jean-François Terral, director, OFPRA, Fontenay-sous-Bois, February 26, 1997.
60. 0 Human Rights Watch/Helsinki attended hearings before three different CRR panels on February 25 and February 26, 1997. Our observations have been confirmed by others familiar with CRR proceedings.
61. Human Rights Watch/Helsinki observations, CRR, Fontenay-sous Bois, February 25, 1997.
63. Human Rights Watch/Helsinki observations, CRR, Fontenay-sous-Bois, February 26, 1997.
64. 0 UNHCR Handbook on Procedures. . . , paras. 200-04.
65. 0 Human Rights Watch/Helsinki interview, Jean-François Terral, director, OFPRA, Fontenay-sous-Bois, February 26, 1997.
66. 0 OFPRA Statistics provided to Human Rights Watch/Helsinki, March 1997.
67. As an exception to this rule, the French authorities have recognized refugees persecuted by non-state entities who they deemed to have attained the status of de facto state authorities. Human Rights Watch/Helsinki interview, Jean-François Terral, director, OFPRA, Fontenay-Sous-Bois, February 26, 1997.
68. 0 UNHCR, An Overview of Protection Issues in Western Europe: Legislative Trends and Positions Taken by UNHCR, (Geneva: UNHCR, 1995), pp. 28-30; UNHCR Handbook on Procedures. . . , para. 65.
69. OFPRA Statistics provided to Human Rights Watch/Helsinki, March 1997.
71. OFPRA Decision (December 1996). (unofficial translation)
73. CRR Decision (February 1997). (unofficial translation)
74. UNHCR, Handbook on Procedures. . . , para. 65 (emphasis added).
75. Human Rights Watch/Helsinki interview, Isabelle Denise, Ligue Francaise des Droits de l'Homme, Paris, July 31, 1997. According to an official of the Ministry of Interior, the length of residence permits and the benefits they accorded were initially variable, but the practice has now stabilized so that all beneficiaries of temporary protection receive six-month permits with the right to work. Human Rights Watch/Helsinki interview, Maxime Tandonnet, head of mission, European Affairs and Asylum Law, Ministry of Interior, Paris, September 26, 1997. Even these more generous rights are not comparable to convention refugee protection.
76. See generally UNHCR, The State of the World's Refugees (New York: Oxford University Press, 1995), p. 85.
77. Human Rights Watch/Helsinki interview, Jean-François Terral, director, OFPRA, Fontenay-sous-Bois, February 26, 1997; It is also possible for an asylum seeker to approach the Ministry of Interior directly to obtain temporary protection. Some Algerians have reportedly chosen this route. Human Rights Watch/Helsinki telephone interview, Patrick Delouvin, Amnesty International French Section, September 22, 1997.
79. Human Rights Watch/Helsinki interview, Isabelle Denise, Ligue Francaise des Droits de l'Homme, Paris, July 31, 1997.
80. Patrick Weil, "For a Fair and Effective Immigration Policy: Report to the Prime Minister," July 1997, pp. 12-16.
81. The government's draft law contains some ambiguity on this point. On the one hand, it would delete a provision that currently gives OFPRA competence to act on an asylum case only after the asylum seeker has registered with the préfecture. It would also delete a provision that gives OFPRA no jurisdiction over Schengen/Dublin cases. In principle, this suggests that an asylum seeker who was unable to register his claim at the border or the préfecture, or was screened out of the regular asylum procedure on the basis of the Schengen/Dublin rules could, under the proposed law, nonetheless go to OFPRA to request recognition as a refugee. At the same time, the proposed legislation retains provisions giving préfectures sole authority over requests to remain in France to seek asylum, as well as provisions giving asylum seekers screened out under the Schengen/Dublin rules no right to request refugee status from OFPRA. Therefore, while the purpose of the proposed amendments dropping current limitations on OFPRA's authority is not clear, it appears that they are not intended to alter the procedure by which asylum seekers obtain access to the asylum procedure or to address the kinds of concerns about that procedure that we have raised in this report. An official of the Ministry of Interior confirmed that nothing in the proposed law would address our concerns about access. Human Rights Watch/Helsinki interview, Maxime Tandonnet, head of mission, European Affairs and Asylum Policy, Ministry of Interior, Paris, September 26, 1997.
82. Refugee Convention, Art. 1(C)(5).
83. See Resolution on manifestly unfounded applications for asylum, adopted Nov. 30, 1992; Conclusions on countries in which there is generally no serious risk of persecution, adopted Nov. 30, 1992.