Right of asylum in France

Asylum in France east, according to OFPRA, “the protection which a State of reception grants to a foreigner who cannot, against persecution, to profit from that of the authorities of its country of origin”. It is a right granted to a person to who is recognized the quality of refugee.

Right of asylum and the statute of refugee in the texts

In addition to the sources of international law and European Right, the right of asylum draws in France its constitutional value from the preamble from the Constitution from 1946 (article 4) and from the Constitution from 1958 (article 53-1). The Code of the entry and the stay from abroad and the right of asylum (CESEDA) specifies its mode with the book VII, which results from the law of December 10th, 2003 amending the law of July 25th, 1952.

Ask asylum

The request to remain in France with the title of asylum is made near the representative of the State on the level of the department (i.e. usually the prefect) or of the prefect of police in Paris. It cannot be refused for the simple reason that the person entered on the national territory in an irregular way (application of article 31-2 of the Geneva Convention). This temporary authorization of stay does not give the right to work.

Only four conditions of refusal exist:

the request falls within the competence of another European State (payment 343/2003 IT of February 18th, 2003);
the foreigner with the nationality of a country considered as sure (17 countries in May 2006 of which the Albania, the Bosnia-Herzégovine, the Georgia, the Mali, the Mongolia, the Senegal) or of a country for which the OFPRA made play clause 1 C 5 of the Geneva Convention (return to the democracy ex: Chile);
the presence from abroad is a serious threat with the law and order;
the request for asylum is the object of abusive recourse.

The request for asylum is made near the French Office of protection of the refugees and stateless people (OFPRA). The foreigner must formulate the request for asylum in French under 21 days. He must show that it was persecuted or that it was in danger in his country. He must join the documents proving the risks which he incurs in his country if he has some. The documents must be translated into French.

The request is then studied by an officer of protection. It comprises a discussion with the applicant.

In the event of rejection, a recourse is possible near the national Cour of the right of asylum.

Asylum at the border

If the foreigner is stopped at the time of his arrival in an irregular way on the territory, it can be maintained in Area waiting. It can then ask the political asylum. The Division Asylum at the Border determines if its request is obviously unfounded.

If the request is regarded as obviously unfounded, the foreigner sees himself refusing the access to the territory. In the other case it is authorized to remain in France in order to lodge the request with OFPRA.

various forms of protection

1 the statute of refugee

He is delivered on one of these three bases:

conventional asylum: pursuant to the Geneva Convention of July 28th, 1951 on the refugees. This convention applies to “any person who (...) fearing with raison d'être persecuted because of her race, of her religion, her nationality, her membership social or of her political opinions, is out of the country of which it with nationality and who cannot, or because of this fear, does not want to claim protection of this country. ”
constitutional asylum: according to the principle posed in the Preamble to the Constitution of 1946 ( “Any man persecuted because of his action in favor of freedom has right of asylum on the territories of the Republic”. ), the article L711-1 CESEDA lays out: “ the quality of refugee is recognized with any person persecuted because of her action in favor of freedom ''”.

Constitutional asylum obeys the same procedure rules and offers same protection that conventional asylum, it is only the legal basis which is different. The authorities responsible for the examination of the request are also the OFPRA and the CRR.

the HCR exercises its mandate on the applicant

2 subsidiary protection

The benefit of subsidiary protection is granted to “any person who does not meet the conditions of granting of the statute of refugee (...) and who establishes that it is exposed in her country with the one of the following serious threats:

the capital punishment;
the torture or of the sorrows or inhuman treatments and degrading;
being a civilian, a serious, direct and individual threat against its life or its person because of a generalized violence resulting from a conflict situation armed intern or international. ”

3 the statute of stateless person

He applies to the people “that no State regards as its national pursuant to his legislation”. This statute is different from the two other forms of protection and concerns only the people who do not have nationality. This statute does not take into account the risks of persecutions in the country of origin.

Jurisprudence relating to the dispute of the right of asylum

Jurisprudence of the Constitutional council

the decision n° 86-216 cd. of September 3rd, 1986 declares that the principle of the right of asylum is implemented by the law and international conventions with the supra-legislative authority recognized at the treaties by article 55 of the Constitution.
the decision n° 93-325 cd. of August 13rd, 1993 recognizes the full constitutional value of the right of asylum as recognized by subparagraph 4 of the preamble to 1946.

Jurisprudence of the Council of State

THIS ESA '' Dakoury '', December 13rd, 1991, N° 120560: the foreigner must be able to temporarily remain on the territory
THIS ord. ref. January 12th, 2001, '' Mrs. Hyacinthe '': the concept of fundamental freedom (in the exercise of a Summary procedure-freedom) includes the constitutional law of asylum and thus the right to request the statute of refugee

Jurisprudence of the European Court of the human rights

Stop Gebremedhin (Gaberamadhien) C. France , April 26th, 2007, by the European Court of the human rights, for violation of the Convention because of the absence in area waiting of access to an automatically suspensive recourse against the decisions of refusal of admission and rebooking, whereas there are serious reasons to believe that the short applicant a risk of torture or ill treatments in the State of destination.

A right of asylum limited: subsidiary protection

The law of December 10th, 2003 amending the law of July 25th, 1952 relating to the right of asylum created a “one-stop shopping” of the applicants near OFPRA and of the national Cour of the right of asylum, who rule on the statute of refugee and the subsidiary Protection (in the event of serious threats like the capital punishment, the inhuman treatments and degrading or the direct and individual threat in a context of internal conflict or international). This law limited the right of asylum by two concepts:

According to the concept of asylum internal, the request for asylum can be rejected if the foreigner “can live normally” on a portion of the territory of his Country of origin.
the OFPRA draws up the list of the “sure” countries of origin which take care of the respect of the principles of liberty and basic rights. The request for asylum can be treated in priority procedure if the applicant is originating in one of these countries. According to the decision of the Constitutional council of December 4th, 2003, that does not prevent the study of the file by the OFPRA.

Criticisms of the French situation

Abuse the right of asylum

According to Maxime Tandonnet, the majority of request asylums initiate the procedure of request not to obtain asylum, but to obtain the advantages that this procedure gives them: right of residence temporary in France during the instruction of the file (without house arrest as in Germany), social rights, weak risk of expulsion for the déboutés applicants (who constitute the majority of the applicants) who remain on the French territory, probability of regularization at the end of a certain time.

Work conditions of the officers of protection

Clemence Armand, officer of protection (agent examining the requests addressed to the OFPRA), wrote a ouvragedans which it describes the bad conditions in which its work is carried out (psychological absence of framing of the officers of protection, misses information on the social services at the time of the reception of request asylums with the OFPRA, need “for making figure” by treating a certain number of files, difficulty in reaching a station Internet to obtain information on the foreign countries). For Helene Iglesias, “precarious agents” (under contract) are sometimes charged to write rejections when their colleagues refused to apply the priority procedure like theirs asked for their superiors).

Abusive suspicion against request asylums

Defense associations of the refugees criticize a reduction in the number of people obtaining the statute of refugee, who is due, for them, with an excess of suspicion against request asylums. The officers of protection must study the requests quickly but it takes more time to grant the statute of refugee than to refuse it. Consequently, of the refugees are déboutés without closer examination of their request.

Notes and references of the article

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