(Paris) – A bill before the French Parliament on immigration and asylum could jeopardize access to protection and should be revised, Human Rights Watch said today. The National Assembly will examine the bill in the week of April 16, 2018, and the Senate in May.
“Under the guise of providing a more effective asylum system, the bill includes a series of measures that would diminish access to protection,” said Bénédicte Jeannerod, France director at Human Rights Watch. “The few – albeit significant – positive measures in the bill cannot hide the concerns it raises for people who were at risk in their home countries.”
Human Rights Watch is concerned about the following measures:
Lack of fairness in accelerated procedures
The bill would reduce the period for filing an asylum application from 120 days after entering French territory to 90 days. But asylum seekers face significant obstacles to filing their applications, in many cases finding it difficult or impossible to get legal or other assistance they need, within a shorter time period.
Applications filed after that deadline would be considered under an accelerated procedure that could diminish the quality of the examination, especially in complex cases. The likelihood that more people would miss the deadline with a shorter filing period would mean that protection officers handling the accelerated procedure would process many more cases with even less time to consider them.
The accelerated procedure provides fewer procedural guarantees, particularly in the case of an appeal. Under the current accelerated procedure, the Office for the Protection of Refugees and Stateless Persons must make a decision in 15 days, as opposed to six months in the normal procedure. Appeals from the accelerated procedure are handled by a single judge in the National Court of Asylum, who would have to issue a decision within five weeks, compared with a decision by a panel in five months under the normal procedure. Placement of late applicants in the accelerated procedure may mean there is not sufficient consideration of individual circumstances and the complexity of certain cases.
The proposed changes could have an especially negative impact on the most vulnerable asylum seekers, who would be the ones most likely to miss the deadline and to face a lack of adequate consideration for their cases, especially if they are complex.
The French authorities should demonstrate due diligence when deciding whether to place a late applicant under the accelerated procedure, and make sure that their vulnerability and the complexity of their situation are taken into account. Otherwise, they risk not complying with the Guidelines on the protection of human rights in the context of accelerated asylum procedures, adopted in 2009 by the Committee of Ministers of the Council of Europe, as the Council’s Human Rights Commissioner warned in a letter to the French Senate and Assembly members.
Shortened deadline for appealing rejections
The bill would reduce from one month to 15 days the time for all asylum seekers to file appeals of negative decisions. Such a short time-frame for the preparation of what can be a technical and complex filing and for which applicants will need legal support, risks depriving them of an effective remedy, with severe and far reaching consequences. In 2017, the National Court of Asylum granted protection in 8,006 cases – 16.8 percent of the 53,581 appeals filed with them. This number of positive protection decisions granted by the court shows the importance of being able to appeal a decision.
Human rights organizations have expressed their concerns about the shortened deadline as have the French Defender of Rights, the Commissioner for Human Rights of the Council of Europe, and the Office of the United Nations High Commissioner for Refugees.
Removals would no longer be suspended pending appeal
Currently the right to appeal allows an asylum seeker to remain in the country under suspensive provisions that suspend removal until the appeal is determined. But the bill would provide for non-suspensive appeals – that is, a risk of being removed from France before an appeal is decided, for “applicants who are nationals of safe countries of origin, those whose application for a re-examination has been rejected and those who pose a serious threat to public order.”
Removing the automatic suspension of removal during an appeal undercuts asylum seekers’ right to an effective remedy and means asylum seekers could be sent back to their country even if their claims of persecution not having been fully adjudicated. The European Court of Human Rights ruled in 2012 that France’s lack of suspensive appeals for certain categories of asylum seekers breached their right to an effective remedy, and France rightly instituted a suspensive appeal in its 2015 asylum law reform.
Increased maximum detention period
The bill would increase the maximum administrative detention period for those awaiting deportation from 45 to 90 days, contradicting repeated calls by the Controller-General for Places of Deprivation of Liberty to reduce this period to 32 days. Although EU law allows member states to detain people pending deportation for up to 18 months, it also allows states to adopt more favorable provisions.
Detention pending deportation should be for the shortest time possible and strictly necessary for the execution of a deportation order, and authorities should demonstrate due diligence toward carrying out the deportation. According to the data collected by associations dedicated to helping migrants, foreigners in mainland France in 2016 were expelled on average after 12 days of detention. The justification for this provision, much less the necessity, is therefore very much in doubt.
Migrant children in detention
This draft law does not address the issue of the detention of migrant children, when it could have been an opportunity for France to abolish this practice. In six cases between 2012 and 2016 the European Court for Human Rights ruled that France’s detention of children violated the prohibition on inhuman treatment or punishment. France should ensure that no child is placed in a detention center and should comply with the November 2017 Joint General Comment of the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families and the Committee on the Rights of the Child of the United Nations, as well as the Twenty Guiding Principles on Forced Return, adopted by the Committee of Ministers of the Council of Europe in 2005.
Other provisions
The bill also contains some provisions that will enhance protection for children at risk of sexual mutilation, such as genital mutilation or forced sterilization, and provides special measures for victims of domestic violence.
It also proposes to extend certain rights for those recognized as refugees or granted subsidiary protection. Beneficiaries of subsidiary protection would be given a four-year residence permit, instead of the current one-year permit.
Another measure would extend the benefit of family reunification to parents and siblings of a child who is recognized as a refugee or granted subsidiary protection. The effective implementation of this measure will, however, depend on the support and access of unaccompanied children to asylum procedures. It is not too late for the French parliament to amend the bill to address obstacles they face, including delays in the appointment of a guardian – a prerequisite for applying for asylum – insufficient support, and lengthy procedures, Human Rights Watch said.
“National Assembly members and Senators should amend the text to guarantee access to the right to seek asylum for people at risk in their country,” Jeannerod said. “If France intends to improve the efficiency of its asylum system, it should start by allocating sufficient resources to the existing system, and not punish asylum seekers for these deficiencies by truncating their rights.”
