We are writing to express our concern about elements of the draft bill concerning “Immigration control, integration and asylum.” As currently drafted, the procedural safeguards in the bill are inadequate to protect against return to the risk of persecution under the Refugee Convention.
We are writing to express our concern about elements of the draft bill concerning “Immigration control, integration and asylum.” As currently drafted, the procedural safeguards in the bill are inadequate to protect against return to the risk of persecution under the Refugee Convention. They are also inadequate to protect against returns to torture or cruel, inhuman or degrading treatment under the Convention Against Torture and the European Convention on Human Rights. We are bringing your attention to this issue in the hope that you will address it while the bill is being considered in the National Assembly and the Senate.
The draft bill creates a suspensive appeal at the border against denial of permission to enter French territory for the purposes of applying for asylum. A suspensive appeal protects the petitioner against removal until a judge has ruled. Article 6 of the bill stipulates that individuals denied permission to enter France to apply for asylum would have 24-hours in which to file a petition with the competent administrative judge for the protection of their fundamental liberties. During that period they would not be removed. Although filing the appeal would then automatically suspend enforcement of removal measures until the judge had ruled, other aspects of the fundamental liberties petitioning procedure would remain unchanged. In particular, the “triage” provision, which allows interim relief judges to reject petitions deemed manifestly unfounded without holding a hearing, would continue.
In our view, the safeguards introduced in the proposed reform remain insufficient to fulfill France’s obligations under international human rights law to protect individuals against refoulement. Nor are they consistent with the recent ruling against France by the European Court of Human Rights in the case of Gebremedhin v. France. That is important because the proposed changes are a response to the Court’s finding, in April 2007, that France violated the right to an effective remedy of an Eritrean asylum seeker held in the international waiting zone at Charles de Gaulle airport. The asylum seeker was refused entry into France, where he wished to claim asylum. The Court determined that the remedy available to him to challenge that decision—the petition for protection of fundamental liberties—was ineffective because it did not have suspensive effect.
Bearing in mind that the purpose of the new law is to improve procedural safeguards in light of the Gebremedhin ruling, we have two principal concerns with the proposed changes.
First, the proposed reforms create a narrow appeal with conditions that are likely to be difficult for many applicants to satisfy. We endorse the expert commentary provided by national nongovernmental organizations ANAFE, CIMADE and ACAT on this point. All three organizations have expressed concern that the petition for fundamental liberties is not the appropriate appeal for asylum seekers detained at the border. The 24-hour time-frame is too short given the practical difficulties such persons face in securing legal counsel and the complexity of the application process. Incomplete and hastily completed petitions run the risk of being rejected as manifestly unfounded in the “triage” operation that allows the administrative judge to dismiss petitions without holding a hearing. This rejection cannot be appealed. It is worth noting that Gebremedhin petition for fundamental liberties was rejected in this manner.
Our second concern arises from the fact that the reform would give the right to a suspensive appeal only to asylum seekers held in international waiting zones, and would exclude other categories of people at risk of unsafe returns from this fundamental guarantee. These include terrorism suspects ordered removed from France by ministerial expulsion order and asylum seekers whose application has been rejected under the priority procedure. This procedure is used for applications that are deemed manifestly unfounded, and for applicants from countries designated as “safe countries of origin.”
In our June 2007 report, “In the Name of Prevention: Insufficient Safeguards in National Security Removals”, we analyze the administrative procedures for the removal of terrorism suspects from France. We conclude that the lack of an automatically suspensive appeal in these cases puts individuals at risk for unsafe returns.
This risk is particularly acute in cases involving persons suspected of involvement in terrorism. The Interior Ministry has the authority to order the urgent expulsion of those suspected of links with terrorism as an “overwhelming necessity for the safety of the state or public security.” Individuals who fear torture or other prohibited ill-treatment in their countries of origin can file a petition for fundamental liberties. To be successful, this petition must demonstrate that the expulsion constitutes a serious and manifestly illegal violation of a fundamental right. But the mere act of filing the petition for fundamental liberties does not suspend enforcement of the removal order, and authorities may still legally remove the individual before the administrative judge has rendered a decision on the appeal. While the Interior Ministry generally stays the removal until after the judge has issued a judgment, a general practice is no substitute for a procedural guarantee written into the law.
Persons subject to ministerial expulsion orders can also apply for asylum, usually under the expedited procedure for those detained pending deportation. But a national security exception in French asylum law excludes individuals categorized as threats to national security from the right to remain in France until the conclusion of the asylum determination procedure. This means individuals may be removed as soon as the Office for the Protection of Refugees and Stateless Persons (OFPRA) has rejected their application, even if an appeal to the Refugee Appeals Board is still pending.
Review by the Appeals Board is a crucial guarantee. The case of Tunisian Adel Tebourski is instructive. Tebourski was expelled in August 2006 shortly after OFPRA rejected his asylum application. The Appeals Board ruled two months later that the OFPRA had wrongly determined there was no risk of torture. While the Appeals Board denied Tebourski asylum under the exclusion clause of the Refugee Convention, the recognition of risk of torture upon return would have prevented France from sending him to Tunisia.
France has an obligation under international human rights and refugee law to conduct a thorough review before removal to ensure an individual does not face a risk of torture or prohibited ill-treatment or other persecution upon return. This obligation applies to all cases, including those involving terrorism suspects. The UN High Commissioner for Refugees has consistently taken the view that the 1951 Refugee Convention requires that all appeals concerning asylum claims should be automatically suspensive. The European Court of Human Rights and the UN Committee Against Torture (CAT) attach particular significance to suspensive appeals in cases the risk of ill-treatment is alleged.
In the Gebremedhin ruling, the European Court reaffirmed its view that article 13 of the European Convention on Human Rights, which guarantees the right to an effective remedy, “requires that the concerned party have access to a remedy with automatic suspensive effect.” 1 Obligations under article 13 must be met, according to the Court, by a formal guarantee, not “a mere statement of intent or a practical arrangement.” 2
The CAT has condemned France twice for expelling someone despite evidence of a risk of torture upon return. In 2005, the committee found that France had violated its treaty obligations under the Convention against Torture when it expelled Mahfoud Brada to Algeria in 2002 at a time when his appeal against expulsion to the Bordeaux Administrative Appeals Court was still pending. In May 2007, the committee again condemned France for Tebourski’s expulsion to Tunisia despite the risk of torture. In both cases, France ignored the committee’s request for a stay in the execution of the removal.
France has the right to control its borders and exclude foreigners who pose a threat to its national security. However, it also has an obligation under international law to ensure that effective safeguards are in place to protect all individuals subject to forced removal against returns to persecution including torture or cruel, inhuman or degrading treatment. We urge you to take the opportunity of the immigration, integration and asylum bill to strengthen the procedural safeguards in forced removal cases by:
- Guaranteeing the right to a simple appeal with automatic suspensive effect against all removal orders, including ministerial expulsion orders, as well as against the denial of leave to enter the country for the purposes of applying for asylum. The model for such an appeal is the automatically suspensive appeal against removal orders for irregular immigrants (APRFs);
- Ensuring that all asylum seekers, including those subject to the priority procedure and those deemed threats to national security, have the right to remain in France until the conclusion of the asylum determination procedure. The appeal to the Refugee Appeals Board against a negative decision by OFPRA should have suspensive effect.
These reforms would bring French law and procedures in line with international law and reaffirm that the struggle against terrorism must be conducted while respecting human rights.
We would be happy to discuss these points with you at your convenience, or to answer any questions you might have.
Thank you for your consideration,
Holly Cartner
Executive Director
Europe and Central Asia Division
Jean-Marie Fardeau
Director
Paris Office
1 Affaire Gebremedhin v. France, Judgment of 26 April 2007, Application no.25389/05, available at www.echr.coe.int, para. 66.
2 Conka v. Belgium, Judgment of 5 February 2002, Application no. 51564/99, available at www.echr.coe.int, para. 83.
