Key Benefits:
(Plenary Assembly - 20 November 2014)
1. On July 16, 2013, the Minister of the Interior initiated a national dialogue on asylum reform chaired by two parliamentarians, Senator Valérie Létard and Member of Parliament Jean-Louis Touraine. This consultation has involved all asylum actors: the public sector and associations involved in this area (1). The CNCDH was auditioned on November 13, 2013, before the consultation ended on November 28, 2013, by handing out a report to the Minister of Interior (2). On 23 July 2014, a bill on asylum reform was passed in the Council of Ministers.
2. By letter dated 5 August 2014, the Minister of the Interior seized the CNCDH with a view to obtaining his opinion on this text.
3. The Government then initiated the accelerated procedure on the bill on 30 September 2014. Therefore, the CNCDH can only recall once again its firm opposition to the implementation of this procedure in a matter as sensitive to rights and freedoms as the guarantee of the right to asylum. The 2008 constitutional reform has certainly led to a decrease in parliamentary time devoted to the review of bills, which in practice leads the Government to more frequently implement the accelerated procedure. However, it does not allow a normal functioning of Parliament, as long as it significantly restricts the time for reflection and maturation necessary for democratic debate, and night, by ricochet, to the quality of the law (3).
4. This reform is part of the process of communitarianization of asylum (4). As a result of the adoption by the European Council of the Stockholm Programme, the Lisbon Treaty entrusted the European Union (EU) with the task of developing "a common policy on asylum, subsidiary protection and temporary protection to provide an appropriate status to any national of a third country requiring international protection and to ensure respect for the principle of non-refoulement" (Article 63.1). After five years of negotiations, the Council of the EU and Parliament adopted in June 2013 the revised texts of the "Home" and "Procedures" directives to be transposed by July 2015 (5), the Dublin III Regulation directly applicable as of January 2014 (6) and the Eurodac Regulation directly applicable as of July 2015 (7). The redesign of the Qualification Directive took place in 2011, with the time limit set by December 21, 2013 (8).
5. The bill intervenes in an extremely difficult context in which entire populations flee, at the peril of their lives, armed conflicts in Iraq and Syria (9), and elsewhere. In addition to this, the recent occurrence of tragic events at the Schengen (10) border, which strongly suggests that the public authorities are still trying to harden their migration control policy (11). If the CNCDH can, without naiveness, understand the fears of massive influx expressed in the Impact Study (12), it nevertheless considers them to be reduced to more just proportions. In this regard, the Commission recalls that:
- within the EU, the number of asylum seekers (just over 330 000 in 2012, according to Eurostat) remains derisory with regard to the population (13) and the economic power of the countries composing the Union (14) ;
- in France, the number of beneficiaries of international protection under asylum remains stable, which is 169,990 in 2013 (15), which remains very much lower than that of beneficiaries of this protection in 1953 (224,829 refugees, source ministry of the interior) and is comparable to that of 1993 (165,531 refugees, source OFPRA).
If these figures deny the reality of a massive influx, it should be recalled that the concern to respond to such a situation is already taken into account by the EU law which has instituted temporary protection (16), a procedure that has remained until now unapplied (17).
6. Yet, and even as the Government expresses the desire to "ensure that France fully ensures its role as a land of asylum in Europe" (18), the statement of the reasons for the bill emphasizes that the current system creates an "inciting to the diversion of the asylum procedure for migratory purposes" before defining the two axes it proposes to follow, namely, "to further improve the protection of persons in need of international protection", The CNCDH can only deplore this type of recurring formulation for more than twenty years, which, by opposing "good" asylum seekers to "bad", contributes to creating a climate of widespread suspicion against those who seek international protection (20). Similarly, the use of dual negations in several sections of the bill (e.g., the requirement that the application for review be not inadmissible or that the application for asylum on the border is not manifestly unfounded) may be understood as presumption of lack of sincerity of asylum applications. In addition, several provisions of the bill misrepresent "foreign" (see articles 12 and 13), which present an unfortunate confusion between asylum and immigration issues. The two make very different logics: the right of asylum is based on a logic of protection, while the right of foreigners is based on a logic of control (21). In the light of the above, CNCDH recommends an improvement in the drafting of the bill. At a time of proliferating security discourses "invigorating" public opinion and leading to an identity fold, or even xenophobic (22), it must call the public authorities to a high degree of vigilance, as long as any process of labelling, deliberately or not, can only prejudice the exercise of the right to asylum (23).
7. In the light of the above, it is the responsibility of the CNCDH to recall the main principles governing the right to asylum, whose protection is first conventional. It follows from the Geneva Convention on Refugees of 28 July 1951, which, without requiring States to grant asylum to refugees, imposes a double obligation on them, on the one hand, of non-refoulement to a country in which their lives or freedom would be threatened on one of the grounds of the convention (Article 33-1), on the other hand, of criminal immunity for their irregular entry or stay (Article 31-1), which constitutes the principle of refugee law). The Charter of Fundamental Rights of the EU must have devoted the "right of asylum" as a fundamental right by noting it to the Geneva Convention and the Treaty establishing the European Community (Article 18). The right derived from the Union recognized a "right to asylum" both to refugees and to beneficiaries of subsidiary protection (Article 24 of the Qualification Directive). The protection of this right is then national, as long as the fourth preambular paragraph of the 1946 Constitution, integrated into the constitutionality bloc, recognizes a right of asylum to any foreign person who is persecuted because of his action in favour of freedom. In addition, "the authorities of the Republic always have the right to give asylum to any foreign person who is persecuted because of his actions in favour of freedom or who seeks the protection of France for another reason" (Article 53-1 of the 1958 Constitution). For the Constitutional Council, the right to asylum is a "basic right" and a "constitutional value principle" (25). The Council of State has affirmed the character of "constitutional law" and "basic freedom" within the meaning ofArticle L. 521-2 of the Administrative Justice Code (CJA) (26).
8. The "fundamental right" character of the right to asylum in the first place prohibits confusing asylum and immigration issues: asylum cannot, because it is a right, be subject to the vicissitudes of immigration policy. In this regard, the CNCDH intends to reaffirm that a genuine asylum policy cannot tolerate a purely quantitative and economic approach highlighting the increase in the number of applicants, thereby increasing costs. Reducing the issue of asylum to a problem of flow management or cost reduction is unacceptable as a result of the exercise of a fundamental right (27). The legislative reform that is the subject of this notice is of great magnitude and the significant changes to the right of asylum will need to be adequately addressed in future financial bills.
Secondly, the nature of the "fundamental right" of the right of asylum requires the legislator not to adopt provisions that affect its essential content (28). States are still free to offer wider protection than that resulting from EU law (29), provided it is compatible with it. They must, like the EU, avail themselves of an interpretation of the Charter that is protective of the rights and freedoms it sets out, as well as those enshrined in the international conventions to which they are parties, such as the Geneva Convention and the European Convention on Human Rights (Article 53 of the Charter of Fundamental Rights).
9. In addition, in the case that the transfer of EU directives would not respect fundamental rights, including the right to asylum, protected at the highest level, the CNCDH recalls that the classical vigilance of the European Court of Human Rights is now added to the control of the EU Court of Justice, specifically called upon to ensure that this right derived from the Charter of Fundamental Rights (30) is in conformity with the Charter of Fundamental Rights (30) and, therefore, In order to raise public awareness of the need for asylum reform in line with the constitutional and European requirements, CNCDH issued a notice on 28 November 2013 on the Common European Asylum Regime (31) and made eleven recommendations in this regard.
10. A year later, CNCDH considered that several provisions of the draft law on asylum reform were real advances. Thus, it is the consecration of the right to maintain in French territory, the extension of the suspensive effect of remedies, the presence of a third party during the interview conducted by the OFPRA officer, the recognition of a right to accommodation for all asylum seekers and the presumption of validity of the civil status acts established by the OFPRA. The maintenance of a specialized asylum judge must also be welcomed.
11. However, the bill seems to be able to be further improved in the sense of a better guarantee of fundamental rights and freedoms. In this regard, CNCDH is once again very concerned about the increasing complexity of asylum legislation (32). The result is an extremely blurred and unreadable right, notably by reference to other texts, to which, with the exception of specialists, only a few people, and certainly not the main ones, have the opportunity to access. For example, Article 2 of the draft law amending Article L. 711-2 of the CESEDA provides that "the acts of persecution and the grounds for persecution within the meaning of Section A of Article 1 of the Geneva Convention shall be assessed under the conditions provided for in Article 9, paragraphs 1 and 2, and Article 10, paragraph 1, of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011...". Or again, the new article L. 711-3 of the ECSEDA relating to exclusion clauses and the new article L. 711-4 of the same code relating to cessation clauses refer to several provisions of the Geneva Convention. More generally, the CNCDH notes that the technique of legislative dismissal is used recurringly for the purpose of determining the applicable procedural rules (see, in particular, articles 7 and 9 of the bill) and that the specific regime of overseas is of a discouraging complexity (article 20 of the bill). The reading of these new provisions is not easy, both for lawyers and for non-lawyers, who must simultaneously refer to several texts. The accessibility and predictability of the law, that is, its quality, are undermined. The work of practitioners has made it all the more difficult.
12. In addition to these issues relating to the quality of the law, the CNCDH wishes to recall, with respect to articles 2, 3 and 4 of the bill, the reservations already expressed in respect of a number of concepts and provisions introduced in 2004 (33) in the first directive "Qualification" (34) and repeated in that of 2011, such as the concept of protection officer, that the draft law extends by including certain parties The CNCDH is particularly concerned about the definition, by a simple reference to the "Qualification" directive, of grounds for fears of persecution that belong to a certain social group (article 2 of the bill) (39). However, French jurisprudence, which is very hesitant, reveals an uncertain application of this ground of recognition of refugee status (40). In addition, the definition given in Article 10.1 (d) of the Qualification Directive is subject to bail because it is too restrictive according to the United Nations High Commission for Refugees (UNHCR) (41), an authority that the Geneva Convention invests in the mission to interpret its stipulations (Article 35-1 [42]). For the CNCDH, the issue related to the clear definition of this ground for recognition of refugee status - especially for fears of persecution related to gender considerations - requires integrating the definition of UNHCR in the CESEDA and not that of the "Qualification" directive (43).
13. More generally, the CNCDH regrets that the bill does not sufficiently highlight the provisions of the directives that formulate the "rights" of asylum seekers and those of the beneficiaries of protection under the asylum, as well as the "guarantees" that match them. It also regrets that the possibility that these guidelines offer States to adopt more favourable provisions is unknown. Similarly, the bill does not bear all the attention they deserve to defend rights. Yet, France's proclaimed attachment to the right of asylum, as the fundamental character of this right, commands a more protective and in any case non-native approach. As the European Court of Human Rights notes, asylum seekers are "a particularly disadvantaged and vulnerable population group that needs special protection" (44). Indeed, "every claimant is unique, each course also. People who have fled their country to seek asylum have lost everything and have often lived the worst, although it is not always visible first. Asking for asylum is having to unfold, saying what we've been through, putting words on what we fear most. Those whose application fails will have to continue their wandering. Decide who obtains the precious protection must therefore be made in an enlightened manner, giving himself the means to know the substance of each request" (45). Therefore, the CNCDH is particularly committed to ensuring that asylum seekers enjoy "not theoretical and illusory" rights, but "concrete and effective" (46):
- the right to effective access to asylum proceedings;
- the right to fair treatment of asylum applications;
- the right to material conditions of reception;
- the right to take into account the state of vulnerability.
I. - The right to effective access to asylum proceedings
14. The "Procedures" directive is intended to "ensure persons in need of international protection access to safe and effective asylum procedures" (47). Despite some provisions strengthening the procedural guarantees of asylum seekers, it includes a catalogue of exemptions. The adoption of vague formulations (48) and sometimes ambiguous makes the interpretation of the text extremely random and leads to allowing States to maintain their national practices. The CNCDH would therefore like to point out, as an introductory reminder, that the transfer of the "Procedures" directive should not be an opportunity to soften the rights of asylum seekers.
A. - Addressing the problem of domicile
15. To date, the first step, in prefecture, requires the claimant to have an address, either in a third party or in his or her name, or in an association specifically approved for that purpose (Article R. 741-2 of the CESEDA). Difficult to be obtained by location and time (49), this requirement contributes to delaying access to the asylum procedure (50), maintaining applicants in a precarious legal situation (51). For the CNCDH, in order to facilitate the domicile of asylum seekers, a residence with a reception platform for asylum seekers, a communal social action centre or any non-specialized associative domiciliatary agency, must suffice to establish a proof of residence (52). It therefore calls for an amendment to article R. 741-2 of the CESEDA.
B. - Delete prefecture
1. Consecrate the principle of unity of the authority responsible for determination
16. The "Procedures" directive, which encourages the re-engineering of our asylum procedure, invites Member States to designate "for all proceedings an authority responsible for the determination to conduct an appropriate review of the applications" (Article 4.1). This provision indicates a principle of unity of the authority responsible for determination (53). Certainly, Article 4 provides two hypotheses ( Dublin application and demand on the border) allowing the designation of another authority (Article 4.2), but this is not only an exception to the principle of unity, but also an optional exception for the Member States.
17. In its opinion of 28 November 2013, the CNCDH, analyzing the division of competence between the OFPRA and the administrative authority, noted the slowness, disparity and the extreme complexity of the first prefecture asylum procedures, as they were likely to have a serious infringement of the fundamental right, for a claimant to asylum, to have his request examined effectively (54). It therefore appeared necessary to make the asylum system more legible and coherent by rethinking the entry into the asylum procedure and removing the "prefecture phase". However, the bill maintains the jurisdiction of the administrative authority for the registration of the asylum application (art. 12), for the determination of the State responsible for the application (art. 13), for the right to maintenance in French territory (art. 14) or for the direction of the procedure (art. 7). In addition, the new text provides that the OFPRA may not be seized with an asylum application "only if it has been previously registered by the competent administrative authority and if the asylum certificate has been handed over to the person concerned" (Article L. 741-2 nouveau du CESEDA).
18. For the CNCDH the new provisions, which maintain the administration-OFPRA duality, will not be able to remedy the many practical difficulties of access to the prefectural window (55). Under these conditions, it renews the recommendations made earlier to remedy the persistent malfunctions that are all hindering the exercise of the fundamental right to seek asylum. Therefore, all issues relating to access to the French territory of asylum seekers and the decision to be taken on the granting of international protection should be addressed by a single body whose legal form could be that of an independent administrative authority (56). It is essential that these matters be within the jurisdiction of an authority that is not directly under the supervision of the executive. In this regard, the bill refers only to the absence of instruction from the Minister of the Interior at the Office (section 5) (57), a surprising precision as the powers of instruction go hand in hand with the hierarchical power. For the CNCDH, the new text should have minimally affirmed directly the principle of autonomy or independence of the OFPRA (58). Finally, if it appeared that the legislator was not convinced of the need to remove the passage in prefecture, the CNCDH would then recommend the urgent simplification.
2. Provide for the registration of the asylum application within three days
19. With respect to the time limits for the registration of the application, section 6.1 of the "Procedures" directive requires the registration of the asylum application within three working days after the application is made. For the CNCDH, this requirement is incompatible with the maintenance of a passage before the administrative authority (article 12 of the bill). In fact, it may be particularly time-consuming, as well as attesting to the extreme length of the time-limits by the prefectures of temporary residence permits, even though a fifteen-day period is set out in article R. 742-1 of the CESEDA (59). In addition, the CNCDH is concerned about the difference in treatment that the directive allows between asylum seekers by simply inviting States to "sure" that the registration takes place no later than six working days after the application is submitted for persons subject to a Dublin procedure and applicants on the border.
20. Section 12 of the Bill entrusts the registration of the asylum application to the administrative authority without setting the deadline. In addition to the reservations already expressed with respect to the maintenance of administrative duality-OFPRA, the CNCDH recommends that future implementing decrees impose the registration of the asylum application within three days.
3. Generalize the right of asylum seekers to remain in French territory until the end of the procedure
21. According to Article 9.1 of the "Procedures" directive, "the applicants are allowed to remain in the Member State, for the sole purposes of the procedure, until the authority responsible for the determination has pronounced itself". Section 9.2 states that it may only be derogated from this right in two hypotheses limitingly listed: that of a subsequent application referred to in section 41 (60) or that of a person to be delivered or extradited.
22. To date, the CESEDA distinguishes between two categories of asylum seekers: those who are allowed to stay and those who are not (articles L. 741-1 et seq. of the CESEDA). The bill puts an end to this distinction by repealing the regime of admission to stay and devoting the principle of a right to remain in French territory until the final decision of the OFPRA or the National Court of Asylum Law (CNDA) for the benefit of all asylum seekers, whether they are placed in normal procedure, accelerated procedure or in Dublin procedure (see new articles L. 743-1, L. 743-1, L. Under these conditions, the CNCDH can only be pleased that all asylum seekers, without distinction, are, in principle, allowed to remain in the territory within the time limit set by the "Procedures" directive and until the end of the procedure. It regrets, however, that the new text only provides for a "right to maintain" in the territory and not a right to a provisional stay taking the opening of social rights (see § 79 and s.). The CNCDH therefore recommends the explicit consecration of a "right to provisional stay".
23. Under section 14 of the bill, it may be derogated from the right of the claimant to remain in France under the conditions defined by a new article L.743-2 of the CESEDA (61). In this regard, the CNCDH regrets that any decision to be inadmissible may justify termination of this right, even though section 9.2 of the "Procedures" directive only applies to the particular case of subsequent requests of section 41.1. It is also amazed at the possibility of derogation in the event of a closing decision, even though section 9.2 of the "Procedures" directive does not refer to it in any way. In this connection, it must be noted that the new section L. 723-11 of the CESDA (article 7 of the Bill) (62) includes broad formulations leaving the PFOA a large margin of appreciation to establish a fence. By ricochet, the extent and effectiveness of the right to maintenance in the territory will, in practice, be reduced.
24. With regard to the above, it is clear that the derogations made by the bill to the right to remain in the territory are broader than those defined in the "Procedures" directive, which are yet strictly interpreted. The CNCDH therefore recommends a modification of the text on this point in the sense of a perfect conformity with Article 9.2 of the "Procedures" directive.
C. - Addressing difficulties in the direction of the procedure
1. Guarantee the rights of applicants in Dublin procedure
25. The CNCDH is pleased to see the Dublin III Regulation that, in the event of impossibility of ensuring a transfer to the responsible State due to systemic failures of the asylum procedure and the conditions of reception of asylum seekers, including the risks of inhuman or degrading treatment under Article 4 of the Charter of Fundamental Rights, the Member State must look into whether another State may be identified as responsible for the asylum application. As a last resort, the Member State proceeding with the determination of the responsible State may become the Member State responsible for the asylum application (Article 3.2). In this sense, Article 13 of the Bill provides that, in the event of the implementation of the procedure for determining the State responsible for the application for asylum, it does not constitute an obstacle "to the sovereign right of the State to grant asylum to any person whose examination of the claim is the responsibility of another State" (Article L. 742-1 paragraph 2 of the ECSEDA). These new provisions are undoubtedly based on the jurisprudence of the European Court of Human Rights (63) and the EU Court of Justice (64). However, they do not impose any obligation on the host State; their implementation therefore depends on the "sovereign" appreciation of the Member States.
26. With regard to the above, the CNCDH recommends that France systematically apply the discretionary clauses of Article 17 of the Dublin III Regulation in the event of a manifest risk of human rights violations in the country of reference. An exchange between the French authorities, UNHCR or any other governmental or non-governmental organization, and, where appropriate, the European Asylum Support Office, which may be aware of the situation in that country, should be able to decide promptly. CNCDH regrets that section 13 of the bill is silent on this issue. The reform of the CESEDA will have to integrate these issues.
27. Finally, article 13 of the bill allows the detention of persons subject to a transfer decision to the State responsible for the asylum application (article L. 551-1 new of the CESEDA), without specifying any reason for the deprivation of liberty. These new provisions are certainly not in accordance with the Dublin III Regulation which sets out the principle that a person cannot be held in custody on the sole ground that it is the subject of a Dublin procedure (Article 28.1). It should be recalled, however, that this regulation exceptionally authorizes retention in the event of "a significant risk of leakage", on the basis of an individual assessment and "to the extent that detention is proportional and other less coercive measures cannot be effectively implemented" (Article 28.2). In this regard, the CNCDH reiterates its reservations with respect to this exemption (65) by recalling its principle opposition to the detention of asylum seekers under a Dublin procedure.
2. Strengthen guarantees in the event of accelerated placement
28. To date, it is the prefectures that direct asylum procedures to the normal or priority path. More guided by a logic of supervision rather than protection of applicants, they make excessive use of the priority procedure, under the control of the Ministry of Interior. In 2013, 13,254 persons, or 25.6 per cent of asylum seekers, were placed in expedited proceedings on the grounds that they were from a country considered safe, that their presence constituted a serious threat to national security or public order, or that their claim for asylum was based on fraud or constituted an abusive or dilatory remedy to asylum procedures (66). However, section 31-8 of the "Procedures" directive still extends the possibilities for recourse to this procedure by defining ten grounds for placing in expedited proceedings. These are included in section 7 of the bill, which provides for the inclusion in the CESEDA of a new section L. 723-2 (67). The CNCDH is concerned about the predictable extension of the accelerated procedure, due to the smallest guarantees that persist, in particular the treatment by a single judge of the CNDA who will lead to the removal of UNHCR from the jurisdictional proceeding while its presence is a founding element of the French asylum system.
Entourage the accelerated decision on placement of more guarantees
29. Under the new article L. 723-2 of the CESEDA, the application of the accelerated procedure is either in full right or at the initiative of the administrative authority or at the initiative of the OFPRA. However, Article 4.1 of the "Procedures" directive requires the sole authority responsible for the determination to decide on the direction of the procedure (68). Accordingly, the CNCDH is of the view that, in order to better comply with the requirements of the Directive, the placement in accelerated procedure should not be automatic as provided for in the new article L. 723-2 of the CESEDA. As UNHCR states very precisely, "the decision to place in expedited proceedings in relation to the situations provided by law (people from a safe country of origin and re-examinations) implies, on the one hand, to analyze, in some respects, the substantive elements of the asylum application and, on the other hand, to take into account specific individual situations that may lead to the removal of the accelerated examination circuit" (69).
30. For the same reasons, the CNCDH argues that the prefectural authority should not be empowered to decide on an expedited placement, as may, if any, result from the ambiguous drafting of the III. of the new article L. 723-2 of the CESEDA. Two readings are possible. The new text may, on the one hand, be understood as giving jurisdiction to the OFPRA to decide on the placement in expedited proceedings after finding one of the situations listed (see article L. 723-2-III 1° to 5°) by the administrative authority in charge of the registration of the application. It may, on the other hand, be construed as only enabling this administration to make such a decision, as can be seen in the VI. of the new article L. 723-2, which explicitly refers to "the decision of the administrative authority referred to in III". CNCDH would like to clarify the new provisions, recommending that this jurisdiction be given to the sole authority responsible for the determination. However, it wishes to commend the competence given to the OFPRA to assess the grounds for the intrinsic merits of an application for international protection (Article L. 723-2-II new). These include "demonstratedly inconsistent and contradictory statements, manifestly false or unpleasant, that contradict verified information about the country of origin" or "questions without relevance to the examination to determine whether it meets the conditions for granting asylum". For the CNCDH, these grounds must necessarily escape a review by the prefectural authority, as they constitute a predetermination of the refugee status.
31. In addition, the new article L. 723-2-V of the CESEDA provides the possibility for the OFPRA to declassify, "in all cases" the accelerated procedure in normal procedure, which is an innovation since the Office can redirect a procedure following a pre-fectoral acceleration decision. Consequently, the sharing of jurisdictions between the administrative authority and the OFPRA is not justified, provided that the latter is empowered to re-evaluate the reasons for placing in expedited proceedings under the jurisdiction of prefectures. This mechanism is therefore a source of complexity and contrary to the requirements of section 4.1 of the Procedures Directive. In these circumstances, the CNCDH recommends that the decision on the direction of the procedure be made exclusively by the authority responsible for the determination.
32. The new article L. 723-2-V of the CESEDA states that the decision to place in expedited proceedings taken by the administrative authority may not be subject to a separate remedy from the merits appeal against the decision to reject the OFPRA, which corresponds to the current state of European jurisprudence (70). In the event of unjustified placement in expedited proceedings, the President of the CNDA or the President of the Court may at most redirect the case and decide that it be decided in collegial training and not a single judge (Article L. 731-2, paragraph 2 of the CESEDA). In addition, it should be noted that a new section L. 733-4 of the CESEDA states that CNDA, which is normally in full litigation, may nevertheless cancel a decision of the Office and return the examination of the application to it in two hypotheses limitingly listed: the absence of a particular examination of the application or the waiver of an interview, apart from the cases provided by law. The accelerated procedure, which is not one of these exceptions, is therefore exempt from the control of legality, even though this decision has consequences on the quality of the examination of the asylum application (71). The CNCDH therefore recommends that paragraph 2 of Article L. 733-4 of the CESEDA be amended by permitting the CNDA to cancel the decision of the OFPRA and to return the examination of the asylum application to the Commission in the event of an expedited placement decision affecting a procedural violation.
Review the grounds for placing in expedited proceedings
33. The reason for placing the applicant from a country of safe origin, which so far constitutes in practice the main reason for placing a priority proceeding (72), is maintained in the bill. Article 6 amends Article L. 722-1 of the CESEDA, which refers to Article 37 and Appendix 1 of the "Procedures" Directive (73), without removing the national lists of safe countries of origin. However, these were the subject of UNHCR-supported criticism (74). Beyond their volatility (75), these lists are not identical in all Member States (76). Not without any impact on the processing of the application, both procedurally and substantively, their use may aggravate the unequal treatment that affects asylum seekers seeking protection in the EU territory according to the State responsible for the examination of their application. For the CNCDH, the "Procedures" directive does not provide guarantees to clearly designate safe countries of origin, such as "safe third countries" or "safe European countries", and give the minimum of coherence expected in a European asylum regime. The EU's renunciation of establishing a European list only confirms the lack of relevance to the country of safe origin. The CNCDH is therefore again led to recall its firm opposition to this concept.
34. With regard to the reason for the presentation by the applicant of false identity documents, the provision of false indications or the concealment of information or documents concerning his identity in order to induce the authorities in error, it must be recalled that, in order to solicit and obtain asylum in a country, it is necessary to be able to enter "unopinally" in his territory (77). Article 31-1 of the Geneva Convention usefully specifies that States will not apply criminal sanctions against refugees because of their irregular entry or stay "provided that they present themselves to the authorities without delay and provide them with valid reasons for their entry or irregular presence". In these circumstances, as long as it cannot in principle be reproached to an asylum seeker to irregularly enter French territory, the CNCDH recommends that it be at least specified in the new text that inducing the wrong authorities must be intentional. In addition, due to a double mention, the appreciation of this motif is both within the competence of the OFPRA and that of the prefectural authority (cf. article L. 723-2-II 1° and III 2°). There is therefore reason to fear that nothing changes in practice in relation to the current situation...
35. For the same reasons, the CNCDH is extremely reserved with respect to the accelerated procedure placement of the asylum-seeker who, without valid reason, has entered France irregularly or has maintained it irregularly, without submitting its application for asylum within ninety days from the date of its entry into France (Article L. 723-2-III, 3rd of the CESEDA). Given the difficulties of proof of the latter date and the fact that a late filing of the application may result from a multitude of factors independent of the interest of the individual (78), it should be thought that this new text is primarily intended for asylum seekers with a "short stay" visa. The CNCDH strongly fears that the implementation of these provisions will in practice lead to an increase in irregular entry into French territory and sees in this place an unfortunate confusion between asylum and immigration logics. The same is true of the reason for the person applying for asylum in order to fail a pronounced or imminent removal measure (Article L. 723-2-III 4° new of the CESEDA). Accordingly, CNCDH recommends the deletion of these provisions.
36. In addition, the expedited placement may be decided in the event that the individual refuses to take prints (Article L. 723-2-III, 1° new of the CESEDA). For the CNCDH, this is not relevant as long as it is unrelated to the merits of the asylum application. That is why it also recommends deletion.
37. Finally, several reasons for the application of the accelerated procedure are vaguely defined and thus leave the authorities a very wide margin of appreciation. This is especially the case of the applicant who "is a serious threat to public order, public security or state security." The same is true of the appreciation of the "questions without relevance to the examination to determine whether it meets the conditions of granting asylum" or of the plaintiff making " manifestly inconsistent and contradictory statements, manifestly false or unpleasant" or of the one who "without valid reason" entered irregularly in France or has been held irregularly without his request for asylum. CNCDH is strongly concerned that this type of provision allows for a quasi-systematic remedy of accelerated procedure, while it should be absolutely exceptional and not, in practice, becoming the "common law procedure". It therefore recommends that the definition of grounds be narrowed. For example, it should be specified that the threat to public order is "current and characterized" (79).
II. - The right to fair treatment of asylum application
A. - Guarantee assistance when filing the asylum application
38. The "Procedures" directive requires States to inform asylum seekers in a language that they understand or of which it is reasonable to assume that they understand it, the procedure to be followed and the rights and obligations during the proceedings, to provide them with such information "in time" to enable them to exercise the rights guaranteed by the directive and to receive an interpreter so that they can submit their arguments to the authorities in charge of the examination of their article.
39. For the CNCDH, it is therefore important that these guarantees be effectively implemented in the current reform of the CESEDA for all asylum applications, whether they are filed in the territory, at the border or in detention. She regretted that the bill was silent in that regard. However, the information in French of a form and the writing, in French also, of the explanation of the grounds for an asylum application, is undoubtedly an obstacle for persons who are not francophone or for those who are not able to formulate in writing what is requested. Beyond the transcript of the information, it is the question of understanding the logic of the asylum procedure that arises, in the absence of a systematic handover of a Guide from the claimant to the concerned (80), even though the issue of such a document is required by article R. 741-2 of the CESEDA. At this stage, the preparation of the asylum application plays an important, and sometimes decisive, role on the outcome of the proceedings. In this context, the conditions must be met so that, at the time of filing an asylum application, the person concerned can benefit from effective information and assistance in order to properly grasp all the issues of the asylum procedure and the legal system on which it is based.
40. In addition, it is up to now the asylum seekers' reception platforms (PADA) that have the task of providing assistance to asylum seekers to the OFPRA (81). However, they cannot always carry out this mission because of budgetary constraints and an overload of activity related to the increase in the asylum application since 2008 (82). So it is too often non-governmental organizations who are asked to help in the drafting of asylum applications and who are themselves overwhelmed (83). This fact leads to the fact that only a small percentage of people actually have access to quality assistance when filing their asylum application. In these circumstances, the CNCDH can only recall the need for the State to provide sufficient funding, particularly for the benefit of associations and interpreters, to make the right to information of asylum seekers fully effective.
B. - Improving the review of asylum application
1. Dealing with the examination of asylum applications at the border with more guarantees
41. A recent report by Anafé depicts the "aint maze at the border" by denouncing the shortcomings and shortcomings of this procedure (84). It is therefore more than necessary today to improve the system, especially since the situation of asylum seekers in the waiting area is extremely worrying: "Aliens placed in the waiting area (...) are often non-French-speaking. Most of those who meet the Anafé are lost: they often don't know why they are deprived of their liberty and what will happen to them for lack of adequate information on the procedure that is applied to them. Locked in closed places, sometimes a dark cell in the basement, under almost prison conditions in police custody and surveillance cameras, these people are exhausted, frightened and destitute. Some are depressed, others are angry to find themselves in such a situation. They know anguish and uncertainty, especially when it comes to vulnerable people (minors, asylum seekers, victims of violence, sick people)" (85). Section 8 of the bill proposes to improve the asylum procedure at the border. In this regard, CNCDH wishes to make several observations.
42. In the first place, the procedure for admission to the territory under asylum is the responsibility of the minister of the competent interior to decide on the entry and residence of foreigners in France. However, the review of asylum applications being the exclusive jurisdiction of the OFPRA, the legislator has provided for its intervention in an advisory capacity. Section 8 of the Bill introduces a positive innovation in the CESEDA by requiring the Minister to comply with this notice (86). On the one hand, it is not necessary to overestimate the Minister's related jurisdiction, as this is already the existing practice. On the other hand, this procedure concerns only a small number of people. Indeed, the impact study shows that only 1,346 people sought asylum at the border in 2013 and that this number has decreased significantly for several years (87). In addition, an exception is provided: where access to the territory of the individual is a threat to public order, the opinion of the OFPRA does not bind the Minister. However, the "Qualification" directive recalls in its article 21 the principle of non-refoulement of asylum seekers and refugees, a principle that imposes itself on States "under their international obligations" and to which it can only be infringed if the refoulement is not prohibited under these obligations and that there are then "serious reasons to consider" the interested person as a "threat threat to the security of the State" he must For the CNCDH, the bill, which allows the minister to refuse access to the territory for a simple threat to public order, is not consistent with this directive.
43. Secondly, the bill deals with the important practice of filtering the border upstream of the claim for asylum on the territory: the procedure by the OFPRA for examining the " manifestly unfounded" nature of the application for admission to the territory under asylum (88). Article 8 provides for the inclusion in the CESEDA of a definition of this concept as follows: "Constitutes an application for asylum manifestly unfounded, which, in the light of statements made by the foreigner and documents, if any, produced, in particular because of their incoherent, contradictory, false or un plausible character, is manifestly devoid of relevance to the conditions of granting of the asylum or manifestly lacking The CNCDH regrets that this definition, which is in part linked to the criteria for recognition of international protection, can lead to an assessment at the bottom of the asylum application, due to the use of the adverb "in particular". However, the procedure for the admissibility of applications on the border has already been well beyond the evaluation of the mere " manifestly unfounded" nature of the application; it implies a real pre-examination on the merits under conditions that do not comply with the minimum guarantees attached to the normal procedure for examining a protection request, in particular due to the shortness of time limits (90). Thus, a foreigner whose application has been declared " manifestly unfounded" at the border is subsequently recognized as a refugee in the territory by the OFPRA or CNDA (91). It is feared that the drafting adopted in the bill will not end, in practice, this serious risk of error of appreciation. Therefore, the CNCDH can only reiterate its recommendation that the assessment of the admissibility of applications at the border should not exceed the assessment of the mere " manifestly unfounded" nature of the application and cannot, in any case, be considered on the merits of the fears of persecution invoked by the individual (92).
44. Thirdly, section 8 of the bill allows the State responsible for the asylum application to be determined on the border under Chapter III of the Dublin III Regulation (93). Beyond what has already been recommended above (§ 25 and s.) in the sense of a strengthening of the guarantees for the benefit of persons in Dublin procedure, the CNCDH is surprised that the bill is completely silent on the articulation of the terms of the transfer to the competent Member State to deal with the asylum application with the legal duration of the maintenance in the waiting area. CNCDH recommends an improvement in the text on this point.
45. Fourthly, section 8 of the bill broadens the grounds for refusal of entry by giving the Minister responsible for immigration authority to refuse entry to France if the asylum application is inadmissible (Article L. 213-8-1, paragraph 4, of the CESEDA). CNCDH is surprised at such a possibility that reveals a confusion between asylum applications on the border and those on the territory. It therefore recommends clarification of the text.
46. In the fifth and final place, the CNCDH regrets the silence of the bill on the presence in the waiting area of the associative sector and the bar, which constitute an essential guarantee for asylum seekers by the effective information, assistance and assistance they provide. It therefore recommends that the State organize an information and legal permanence under legal aid. Sufficient funding should be provided.
2. Strengthen the quality of hearings
47. Article 14 of the "Procedures" directive sets out the principle of individual maintenance during the proceedings following the filing of the asylum application. The reasons for derogation from the conduct of a personal hearing are limited; only cases of manifest positive decisions and reasons for the applicant's health are maintained (Article 14.2). Article 7 of the Bill fully incorporates these provisions (see new section L. 723-6 paragraphs 1 to 3 of the ECSEDA) (94). In this regard, it should be recalled that the administrative judge makes this interview a guarantee of the asylum procedure, whose violation "in view of its essential character and scope" is illegal for the decision of the OFPRA. Article 10 of the Bill enshrines this jurisprudence by providing that the CNDA may cancel a decision of the Director General of the OFPRA and return the examination of the asylum application "when it considers that the Office has made this decision (...) by waiving itself, apart from the cases provided by the law of a personal interview with the applicant and that it is not in a position to make an immediate positive decision on the application before it".
48. Section 7 of the Bill provides that the applicant "is heard in a language of his or her choice, unless there is another language that he or she understands and in which he or she is able to communicate clearly" (new article L. 723-6 paragraph 4 of the CESDA). In order to ensure the full effectivity of the interview, the CNCDH recommends either to delete the second part of this sentence or to replace "clear" with "current". In addition, if the applicant so requests, the hearings must, to the extent possible, be conducted by a same-sex agent and with the assistance of a same-sex interpreter (Article 15.3 b and c of the "Procedures" directive). While this possibility is already available in practice to persons applying for asylum in France, the CNCDH nevertheless considers that it is necessary to devote it to the CESEDA by providing that persons concerned are duly informed of it. Accordingly, the drafting of paragraph 8 of new article L. 723-6 of the CESDA, which provides that "the terms and conditions for the organization of the maintenance are defined by the Director General of the OFPRA", is not satisfactory.
49. In addition, under section 16 of the "Procedures" directive, the applicant must have, at the time of the substantive interview, "the concrete possibility" to present the necessary elements to support his request "as complete as possible", including the possibility of explaining elements that might be lacking and/or any inconsistency or contradiction in the statements. These provisions should enhance the quality of hearings and thus decisions. They introduce the idea that the hearing must be a constructive exchange between the claimant, whose role is central, and the person in charge of examining his or her situation. In this regard, the CNCDH recommends that practitioners interpret the new paragraph 4 of article L. 723-6 of the CESEDA (95) in this regard. It further recalls that the preparation for maintenance is an integral part of the assistance of asylum seekers and must, as such, be included in the terms of reference of the reception platforms (96). Finally, it recommends that consideration be given to the implementation of maintenance methods that focus on open issues (97).
3. Strengthen the quality of the transcript
50. The maintenance record is a key part of the record, as long as the hearing is largely based on the decision taken by the OFPRA (98). In this regard, the "Procedures" directive introduces a number of guarantees. For each hearing, States must prepare a "detailed and factual" report or a retranscription (Article 17.1) or provide for audio or audio-visual recording (Article 17.2). Before a decision is taken, the applicant must be given the opportunity to comment and/or provide clarification, orally and/or in writing, regarding any translation error or any misunderstanding in the report or retranscription; it must then confirm that the content of the report or retranscription correctly reflects the hearing (Article 17.3) (99). It should be noted that if a refusal of confirmation is not an obstacle to decision-making, the reasons for such refusal must be included in the applicant's file. In addition, the applicant and its legal counsel must have access, prior to the decision-making, to the report, retranscription or registration (section 17.5), and to the information (100) on which the officer in charge of the examination of the application was based.
51. Article 7 of the bill provides for the inclusion of a new section 723-7, which states: "In conditions fixed by decree in the Council of State, the personal maintenance conducted with the applicant shall be the subject of a transcript to the record of the person concerned. The transcript shall be communicated at their request to the interested person or his lawyer or to the representative of the association before a decision is made on the application. In the case of the application of Article L. 723-2 (accelerated procedure), such communication may be made upon notification of the decision." For the CNCDH, the principle of the conflict requires that the discussion on the transcript of the interview and its communication should take place systematically before the decision is taken, whether the procedure is normal or accelerated. It therefore recommends an amendment to the new article L. 723-7 of the ECSEDA. In addition, it wishes that all the guarantees listed in Article 17 of the "Procedures" directive be introduced into the CESEDA in the preparation of the implementing decrees.
4. Guarantee the presence of counsel during maintenance
52. To date, the CESEDA does not provide for the presence of counsel at the hearing conducted by the OFPRA officer. The "Procedures" directive will result in a real upheaval of practices by providing that States are required to authorize an applicant to attend personal maintenance accompanied by a legal council or another adviser (Article 23.3). However, they may choose to limit the intervention of the latter "at the end of the interview" (paragraph 3). Section 7 of the Bill incorporates a new section L. 723-6 paragraph 5 in the CESEDA, which reads as follows: "The applicant may present himself to the maintenance accompanied by a lawyer or a representative of an association for the rights of foreigners or asylum seekers. During the interview the lawyer or representative of the association may take notes. At the end of the interview, the lawyer or representative of the association may, upon request, make comments. »
53. The CNCDH regrets the choice of a minimization of the provisions of the "Procedures" directive referred to above. She would like to recall that the presence of counsel ensures a contradictory and transparent course of individual maintenance, whose quality can only be improved. CNCDH therefore recommends that:
- the applicant shall be informed before the maintenance of the opportunity to be assisted by counsel;
- the applicant may present himself to the interview accompanied by a lawyer or a representative of an association for the defence of the rights of aliens or asylum seekers, being specified that the effectiveness of this guarantee will depend on the means for this assistance;
- Council can play an active role during the interview and not only at the end of the interview.
5. Reducing the duration of the procedure
54. Article 31.2 of the "Procedures" directive sets out the principle of the reasonable period of asylum proceedings by requiring Member States to ensure that the review process is completed as soon as possible, without prejudice to an appropriate and comprehensive review. Under Article 31.3, Member States shall ensure that the examination of the asylum application is completed within six months of the introduction of the application. However, they have the option of extending this period up to eighteen months (Article 31.5) (101), or even twenty-one months in case of freezing of the proceedings (Article 31.4). In this regard, the CNCDH is surprised at the possibility that States may freeze the processing of applications in the light of "an uncertain situation in the country of origin that should be temporary" (Article 31.4 "Procedures"). In addition to the vague and precisely uncertain nature of the criterion of such a gel, the potential duration of such a gel (up to twenty-one months from the introduction of the application), there is no other guarantee to the applicant that a "information, within a reasonable time, of the reasons for the postponement". If the CNCDH can understand the difficulties of processing asylum applications in the event of massive influx, it can only be astonished at the silence kept by the draft law on the temporary protection procedure established by the EU to respond to the tension related to the situation in some countries without delaying the granting of protection (102).
55. The number and imprecision of these exemptions leave Member States a wide margin of interpretation and management of procedural deadlines. The CNCDH intends to recall that the deadlines mentioned in the directive are for maximum durations and that the asylum procedure before the OFPRA must be strictly supervised within six months (103). It therefore recommends the consecration of this principle in CESEDA.
56. In addition, section 10 of the bill provides for the inclusion in the CESEDA of a new article L. 731-2 setting deadlines for the review of appeals by the National Court of the Right of Asylum (CNDA) (104), recalling that, to date, the average time limit of the proceedings before this court is approximately nine months (105). Under the new provisions, the CNDA is a collegial body within the five-month common law period. However, in the event of a decision to inadmissibility or rejection in the context of an expedited procedure, it shall decide on a single judge within five weeks. If measures to improve the quality of the procedure before the OFPRA recommended by the CNCDH should be implemented quickly, the contentious phase would inevitably be less frequent (106). In these circumstances, the CNCDH considers that the practical effectiveness of reducing the time limits provided for in new article L. 731-2 of the CESEDA will depend on the quality of the proceedings before the OFPRA.
57. Moreover, the reduction of procedural time limits could not provide procedural guarantees to CNDA (107). In this regard, the CNCDH deplores the extension in the bill of single judge proceedings a little over a year after a reform of the Administrative Justice Code which has done so in respect of litigation on social rights (108). It sees the insidious emergence of a "two-speed administrative justice" and must remember that it can only be tolerated by the poor or "particularly disadvantaged and vulnerable" persons who are asylum seekers (109), benefit from procedural safeguards at the discount. The treatment by a single judge of the CNDA will also lead to the removal of UNHCR from the jurisdictional proceeding while its presence is a founding element of the French asylum system. Noting its deep commitment to the principle of collegiality, CNCDH therefore recommends an amendment to the new article L. 731-2 of the CESEDA. Finally, the free choice of a human rights defender must be guaranteed, including legal aid. A sufficient time for the preparation of the defence must be ensured, in accordance with the requirements of articles 13 of the EHRC and 21 of the "Procedures" directive.
6. Guarantee to the claimant the right to the benefit of doubt
58. The most authorised doctrine emphasizes that asylum law litigation is not a criminal litigation, or even a litigation of evidence, but a litigation of accreditation of a situation (110). Indeed, the Geneva Convention does not contain any provision relating to the procedure for determining refugee status and evidence of the fear of persecution invoked (111). Such evidence remains almost impossible to report, as the UNHCR Manual of Procedures and Criteria for Determining Refugee Status states very precisely: "It is possible that after the claimant has tried to establish the accuracy of the facts it reports, some of his claims may not be proven to the evidence (...) A refugee can hardly prove all the elements of his case and if that was an absolute condition, most refugees would not be recognized as such. It is therefore necessary to give the applicant the benefit of doubt" (112). Thus, the OFPRA officers and the CNDA judges will have to form an intimate conviction on the credibility of the statement made by the claimant based on no evidence, but a mere cluster of indexes (113). This inflexibility of the burden of proof is enshrined in the Qualification Directive under which "It is up to the Member State to evaluate in cooperation with the applicant the relevant elements of the application" (Article 4.1). The bill usefully transposes the latter provision into a new section L. 723-4 of the CESEDA (114), which, however, curiously, on several occasions, requires the claimant to provide true evidence. Recognition of refugee status then appears as a true "truth test" (115). For the CNCDH, the reference to evidence in the new article L. 723-4 of the CESEDA is contrary to the spirit of the Geneva Convention and the "Qualification" directive. It therefore recommends that it be amended by deleting the terms "evidence" and "probative".
59. Paragraphs 4, 5 and 6 of the new article L. 723-4 also set out guidelines for the assessment by the OFPRA of the asylum application. For example, paragraph 5 of the new article L. 723-4 of the CESDA clearly establishes a hierarchy between "fears of persecution" and "persecutions already suffered" (116). In this regard, the CNCDH intends to recall that the principle of intimacy is opposed to the determination of any rule governing the assessment of a claim and prohibits the priori determination of the probative value of an index or any other factual element. It therefore recommends an amendment to the bill on this issue.
7. Entourage the decisions of irreceivability of serious guarantees
60. Translating section 33 of the "Procedures" directive, a new article L.723-10 of the CESDA provides for the possibility to declare, without examination on the merits, an application for asylum in particular:
- where the applicant is granted refugee status and effective protection in a third State and is effectively re-admissible;
- when the claimant has protection under asylum in a EU Member State.
The CNCDH notes with satisfaction that, in the first case, the OFPRA has an obligation to verify that the applicant has effective protection in the third State and that it is effectively re-admissible. On the other hand, none of this is foreseen in the second hypothesis, although the Council of State states that the presumption of effective protection of a person recognized as a refugee in a Member State of the EU is refragable, the applicant having the opportunity to establish the inability of the Member State concerned to ensure effective protection (117). In these circumstances, the CNCDH recommends harmonizing the drafting of the new article L. 723-10 of the CESEDA by requiring the OFPRA to verify, prior to the decision to be admissible, the effectiveness of protection in the EU Member State concerned and the possibility of readmission.
61. The new article L. 731-2 of the CESEDA provides that decisions on admissibility may be appealed without suspensiveness before the CNDA. As has already been clarified (see § 31), the new article L. 733-4 of the same code states that the CNDA, which normally rules in full litigation, may nevertheless cancel a decision of the Office and return the examination of the application to it in two hypotheses limitingly listed, to the rank of which the decisions of admissibility are not included. They are therefore exempt from the control of legality, even though they have very severe consequences on the situation of the claimant, because of the lack of examination on the merits of his application. In addition, the individual may be deprived of his or her right to maintain the territory (Article L. 743-2 nouveau du CESEDA). Accordingly, the CNCDH recommends that paragraph 2 of Article L. 733-4 of the CESEDA be amended by permitting the CNDA to cancel the decision of the OFPRA and to return the examination of the asylum application to the Commission in the event of a decision to inadmissibility affected by a violation of the law.
8. Improve the closure regime
62. Translating sections 27 and 28 of the "Procedures" directive, the bill introduced two articles in the CESEDA relating to the withdrawal or waiver of an asylum application. A new section L. 723-11 lists cases in which the OFPRA can render a so-called "examination closing" decision (118). With regard to the reason for the late filing of the application (Article L. 723-11 (c nouveau), the CNCDH notes that perfectly legitimate reasons can explain this situation, such as the lack of knowledge of the French asylum system, the lack of control of the French language, isolation from the entry into French territory, medical difficulties or the psychological fragility of the asylum seeker. In addition, a late deposit is not likely to exclude a need for international protection. The CNCDH therefore recommends that it be clarified in the text that the lack of submission of the application within the time limit is not justified by any valid reason. In addition, a closing decision may also intervene "when the applicant has fled or left without authorization the place where he was housed (...) or has been required to reside or has failed to comply with his reporting and communication obligations to the authorities" (Article L. 723-11 again). For the CNCDH, the applicant's failure to comply with these obligations is unrelated to the examination of the need for international protection (119). It therefore recommends the deletion of these provisions.
63. A new article L. 723-12 of the CESEDA defines the reopening of the file (120), which may be requested by the applicant within nine months. CNCDH expresses its strongest opposition to the provisions of the last paragraph under which, beyond nine months, the request for reopening of the case is considered to be a request for re-examined in expedited proceedings. Indeed, it is hardly conceivable to consider any re-examination, as long as there has not been, in advance, rejection of a first asylum application. In the absence of such a rejection, the assessment of new elements based on the review is, in surplus, totally impossible. In addition, it must be noted that, under the Bill, the OFPRA may, in such a case, not conduct an interview (article L. 723-14 new of the CESEDA), which is nevertheless an essential guarantee of the asylum procedure. For all of these reasons, CNCDH recommends the deletion of the new provisions.
9. Guarantee a suspensive remedy of full right in all asylum proceedings
64. The provisions of the new "Procedures" directive (Article 46-5) provide the principle that Member States allow asylum seekers to remain in their territory until the time limit for the filing of an appeal has expired, and if the appeal has been lodged, until it has been completed. However, a series of exceptions limit this right. In these assumptions, a court must decide on the suspensive nature of the appeal, either on its own motion or on the basis of an asylum-seeker (articles 46.6 and s.). In both cases, the intervention of the jurisdiction is only provided for in the directive if the decision to reject the asylum application "has the effect of putting an end to the applicant's right to remain in the territory of the Member State" (Article 46.6 in fine).
65. To date, the only suspensive remedy available to asylum seekers in French territory is the one available to the reappointing judge at the border who is responsible for monitoring the legality of the removal measure (requirement to leave French territory) and for verifying, inter alia, its compatibility with articles 3 and 8 of the EHRC. The appeal to the CNDA in the course of normal proceedings is not directly suspensive (121), even if the foreigner dismissed from his or her application cannot be transferred to the border to the extent that he or she enjoys a right to the provisional stay until the decision of the Court. But above all, appeals filed by applicants in priority proceedings are not suspensive (122). The same applies to appeals against the transfer decision under the Dublin Regulation.
66. For the CNCDH, the condemnation of the non- suspensive nature of these appeals by the two European courts (123) imposes a reform to which the "Procedures" directive and the Dublin III Regulation (124). The bill is very fortunately innovating by providing that asylum seekers can, in full right, remain in the territory until a final decision of the OFPRA or CNDA, as long as they are placed in normal or expedited proceedings (Article L. 743-5 nouveau du CESEDA [125]). With respect to applicants in Dublin proceedings, they also enjoy the right to remain in France until the end of the procedure for determining the responsible State and, if necessary, until their effective transfer to France (Article L.743-3 of the CESEDA [126]), the appeal before the administrative court being suspensive of the transfer decision (Article L. 742-5 paragraph 2 of the CESEDA [127]). In the event of an application for asylum in custody, the President of the Administrative Court has the power to allow a person who has been the subject of a decision to be inadmissible or rejected, to remain in the territory until the decision of the CNDA, if he considers that the application for asylum has not been submitted "for the sole purpose of failing the enforcement of the removal measure" (Article L. 556-1). On the other hand, the bill does not provide for a suspensive remedy or for closing decisions (Article L. 723-12 nouveau du CESEDA) or for decisions to be inadmissible (Article L. 743-2 nouveau du CESEDA [128]). In these two assumptions, the new provisions provide for the possibility of ending the claimant's right to remain in the territory (see para. 23 above). Under these conditions, the CNCDH can only once again recall that it is imperative to institute a suspensive appeal of full right within the framework of all asylum procedures, being specified that the legal regime of the challenge of the obligation to leave French territory (Articles L. 512-1 et seq. of the CESEDA) has no impact on these procedures.
67. In addition, it follows from article 13 of the EHRC that the person concerned must be able to make an appeal within a "reasonable period", which implies the legal definition of a sufficient time to prepare, draft and file a request that includes a detailed statement of the means of fact and law. The Bill provides that appeals before the NDAA are, in principle, exercised within one month, whether the procedure is normal or accelerated (Article L. 731-2, paragraph 1 new of the CESDA). This period is less than the two-month period of ordinary law for litigation before the administrative judge. It should be recalled that too short a time limit puts into question the effectiveness of the appeal (129). Thus, it is the seven-day time limit for appeals against the transfer decisions of the "Dubees" (Article L. 742-4 new of the CESEDA) and, more importantly, the 48-hour time limit for appeals against decisions of refusal of entry to the French territory (Article L. 213-9 of the CESEDA) and against decisions of irrecognition or rejection pronounced against an article seeking asylum. As a result, the CNCDH recommends the extension of these deadlines and the transformation of time-to-time delays to working days.
68. With respect to the asylum procedure at the border, the CNCDH particularly recommends that the appeal period against the refusal of entry should be set as the starting point for the appeal, the date of the issuance of the OFPRA's maintenance notes (130), so that the applicant is able to justify his appeal against the decision to reject the Office. In this regard, it reiterates the preconizations already expressed for applications in the territory relating to the organization and funding of an information permanence, as well as a legal aid legal duty station.
III. - The right to material conditions of reception
A. - Improve reception, accommodation and accompaniment
69. Following the decision of the Court of Justice of the European Union requiring States to grant minimum accommodation conditions to asylum seekers in Dublin proceedings, the new "Home" directive states that it applies "at all stages and all types of procedures relating to international protection applications", without distinguishing between the different categories of asylum applications (Article 17.1). France must therefore, in order to comply with the requirements of this directive, propose material conditions of reception worthy of all persons seeking international protection. Alignment will have to be made on the most protective standards, the States that may adopt or maintain conditions more favourable than those provided for by the law of the Union. In this regard, the CNCDH recalls that the material conditions of reception cannot constitute a variable of adjustment made available to the authorities to deter foreigners with fears of persecution from seeking international protection in France.
70. The CNCDH reiterates its findings and recommendations on the national reception system (DNA) that creates inequalities in treatment, due to its structural underdoing (131). Therefore, any reform of the national reception system must continue the objective of the 11th considering of the "Home" directive by adopting standards that guarantee asylum seekers a dignified standard of living. As a result, the CNCDH hopes that the objective of optimizing the care of asylum seekers in asylum seekers' reception centres (CADA), managed by associative structures, is preferred to meet the increase in the asylum application and that new places are created (132). In addition, it is imperative that asylum seekers' hospitality and accommodation missions include administrative, social and legal support. For the CNCDH, the public authorities must ensure the quality of this support despite the acceleration of the procedure required by the bill.
71. Finally, the CNCDH is particularly obliged to acknowledge the considerable work and exemplary dedication of the associations involved in the reception, orientation, accommodation and accompaniment of asylum seekers. They frequently work under very difficult conditions. Because of insufficient means, they are too often forced to "manage the shortage". The CNCDH can therefore only recommend to the public authorities that they value associative know-how and provide funding for these structures to carry out their missions in good conditions.
B. - Improve the scheme of the asylum-seeking allowance
72. Several decisions of national judges (133) and European judges (134) indicate that all asylum seekers, without distinction, must be entitled to such an allowance. Article 17.1 of the "Home" directive states that: "The Member States shall ensure that applicants have access to the material conditions of reception when applying for international protection", without distinguishing between the different categories of applicants. The Bill provides for the inclusion in the CESEDA of a new section L. 744-9, which reserves the benefit of the allowance for asylum seekers paid by the French Immigration and Integration Office (OFII) to the only persons meeting age and resources criteria and accepting the comprehensive offer of care, including its accommodation component (135).
73. The CNCDH regrets that the new system is reserved for only persons who have accepted the material conditions of reception proposed by the OFII after the registration of the asylum application by the administrative authority. In its interpretation of the "Home" directive, the EU Court of Justice explicitly makes no such limitation (136). In addition, the new text provides that it may be taken into account the age of the person concerned for the payment of the allowance. In this regard, the CNCDH recommends that minors have the right to access the new grant for asylum seekers.
74. Furthermore, Article 17.5 of the "Home" directive provides that, when States grant the material conditions of reception in the form of financial allowances, the amount of such allowances shall be determined according to the level established in the Member State to guarantee an adequate standard of living for its nationals. As the Council of State has repeatedly pointed out (137), the amount of the current temporary waiting allowance (ATA) is insufficient (138) and does not survive in the absence of accommodation. For its part, the EU Court of Justice recently stated that the financial allocation granted to asylum seekers must allow them to find, where appropriate, private rental housing (139). CNCDH therefore recommends a reassessment of the amount of the allowance paid to asylum seekers.
C. - Guarantee the freedom of choice of place of residence
75. The "Home" directive provides States with the opportunity to limit the freedom of movement of asylum seekers in a country and to impose an obligation of residence in a specified place, to punish the violation by deprivation of the material conditions of reception and to subject to provisional authorization the right to leave the place of residence which is granted to them (Articles 7.2 et seq.). Transposing these provisions, section 15 of the bill introduces a two-way system:
- a national distribution of accommodation spaces declined by region and includes all existing devices (see new articles L. 744-1 et seq. of the CESEDA);
- a national orientation and directive of asylum seekers to places of accommodation with a withdrawal of the material conditions of reception in the event of refusal or breach of their obligations (see new articles L. 744-7 et seq. of the CESEDA).
It is up to the OFII to implement this device (Article L. 744-1 of the CESEDA).
76. Confronted with the concentration of the asylum application in Ile-de-France, the State is tempted to make a mandatory distribution of asylum seekers on the national territory (140). For the CNCDH, such a system can only work in practice if suitable accommodation and accompaniment are provided for all from the beginning of the procedure. It further notes that the free choice of place of residence is already forced so far as in the event of a refusal by the claimant to be taken care of in CADA the claimant loses the benefit of the ATA (Article L. 5423-9, 3° of the Labour Code). However, the finding of poor distribution is primarily the result of the shortage of places in CADA and the lack of national solidarity, to which it must be imperatively remedied. Under these conditions, the CNCDH confirms its deep commitment to the free choice of accommodation by asylum seekers, on the understanding that the exercise of this freedom of choice cannot adversely affect the benefit of the other conditions of accommodation, including the granting of an allowance and the support of the asylum seekers. It particularly recommends, like a recent parliamentary report (141), that each claimant be allowed to be accommodated by a third party without being penalized by the loss of their right to an allowance. At the very least, if the principle of direct accommodation was to be maintained, the CNCDH considers that it is necessary to obtain the consent of the claimant. The OFII could thus in the first instance propose to the interested party a place of accommodation and invite him to visit it, without penalty in case of refusal.
77. In addition, the provisions of the new article L. 744-8 of the CESEDA, setting out the conditions under which the administrative authority may limit or suspend the benefit of the material conditions of reception (142), constitute a matter of serious concern to the CNCDH as long as they authorize the establishment of a system of control of asylum seekers similar to a residential assignment regime. In addition to this, the new article L. 744-4, paragraph 3, of the CESEDA, which obliges accommodation structures to alert the competent administrative authority "in the event of unjustified and prolonged absence of persons who have been guided during the proceedings". CNCDH is strongly concerned that these new provisions will not lead to a comprehensive monitoring system in practice. For this reason, she would like to remind her of her principled opposition to the control of asylum seekers, such control that ignores the fact that they only exercise their fundamental right to seek asylum.
78. Finally, a new article L. 744-5 of the CESEDA sets out the procedure of the referee, a useful measure, in the event of undue occupation of a place of accommodation by a person whose asylum application was definitely rejected. It provides for the removal of the emergency condition, the evidence normally required by the applicant under section L. 521-3 of the CJA (143). The new provisions organise an exorbitant procedure of common law by dispensing the administration of emergency evidence. The principle of equality before the law is, under these conditions, undermined. Accordingly, the CNCDH recommends the deletion of this derogatory regime. At the very least, if it was to be maintained, the interested party should receive legal aid.
D. - Strengthening access to social rights
79. The effectiveness and speed of access to these rights must be strengthened. Asylum seekers often wait very long to be able to benefit from this because of difficulties in accessing the asylum procedure, or unjustified or unregulated "administrative smuggling".
80. Article 15.1 of the "Home" directive invites States to ensure that asylum seekers have access to the labour market within a maximum period of 9 months from the date of their application for international protection. If States are empowered to determine the conditions under which access to the labour market is granted to them, effective access to this market must nevertheless be guaranteed (Article 15.2). The possibility of giving priority to EU citizens, European economic space nationals, as well as to third-country nationals on a regular basis "for reasons related to their labour market policy", is nevertheless devoted to Article 15.2 and already implemented by the Labour code.
81. CNCDH regrets that the bill remains completely silent on this right to work. However, it is in the interest of all to allow asylum seekers to legally access the employment market as it is an authorisation factor. This access should be open to any claimant after the application is filed. In addition, access to vocational training and learning devices in the French language should be possible as soon as the applicant is allowed to stay in French territory, in order to encourage the integration of those who will be recognized as international protection.
82. Access to medical care is also provided for in the "Home" directive as part of the minimum guarantees to asylum seekers (Article 15). CNCDH recommends an increase in the resources allocated to CADA to meet the medical and paramedical needs of asylum seekers. To date, access to health insurance and universal supplementary health coverage (CMU/C) requires regularity of stay (articles L. 380-1 and R. 380-1 Social Security Code). However, a device is reserved for foreigners who do not fulfil this condition: it is State medical assistance (AME) regulated in the code of social action and family (articles L. 251-1 et seq. of the CASF) and whose access is conditioned to a period of three months' presence in France, a condition which is set aside for minors by the Council of State (144). The specificity of the right of asylum does not seem to be compatible with the condition of seniority of the presence in France for the benefit of State medical assistance. The CNCDH recalls that the obligations set out in Article 19 of the "Home" directive impose on Member States only minimum obligations (145) and that all asylum seekers must be affiliated with the general health insurance scheme and benefit from the supplementary CMU (146).
IV. - The right to take into account the state of vulnerability
83. The concept of vulnerability covers extremely diverse situations in which people are in a state of great fragility. Article 21 of the "Home" directive lists vulnerable persons "such as minors, unaccompanied minors, persons with disabilities, the elderly, pregnant women, isolated parents accompanied by minor children, victims of trafficking in human beings, persons with serious diseases, persons with mental disorders and persons who have suffered torture, rape or other serious forms of psychological, physical or sexual violence". However, in several of its provisions, the bill seems to devote a lesser view of vulnerability by restricting it to minors and persons subjected to torture or inhuman or degrading treatment (see new articles L. 213-8-2, L. 723-2 and L. 723-3 of the ECSEDA). CNCDH recommends that ambiguity be lifted on this point, so that the new texts cannot be interpreted by those who implement them as limiting vulnerability to these two assumptions.
84. Article 11 of the "Home" directive allows the detention of vulnerable persons. In this regard, the Directive incorporates a number of principles on women, families, people whose health requires particular monitoring or support. Mental health problems are not a case of exclusion from this custodial measure (Article 11.1). As the CNCDH has reiterated its reservations with regard to the continuation in Europe of a system of administrative internment for asylum seekers, these are, more importantly, relevant to vulnerable persons. With regard to minors more specifically, the approach is even more worrying since the "Home" directive does not exclude the possibility of deprivation of liberty as a derogatory (arts. 11.2 and 11.3). In this regard, section 8 of the bill provides for the possibility, of course exceptional, of placing unaccompanied minors in a waiting area (Article L. 213-8-2 nouveau du CESEDA), although pursuant to Articles 31 and 33 of the Geneva Convention, isolated children seeking protection, such as all asylum seekers, must never be denied access to the territory, be returned to the border or be detained. The CNCDH wishes to recall its strong opposition, which has been repeatedly repeated for many years, to the pronouncement of custodial measures against isolated asylum seekers, an opposition that is based on the safeguard of "the best interests of the child" (article 3.1 of the CIDE) (147). These minors must immediately receive judicial protection and support for social assistance in children (148).
85. In addition, the "Home" directive provides an assessment of the special needs for the reception of vulnerable persons (Article 22). For the purpose of transpositioning this text, section 15 of the bill provides for the inclusion in the CESEDA of section L. 744-6, as follows: "After an application for asylum is made, the French Immigration and Integration Office is responsible for conducting a reasonable time review of the asylum applicant's vulnerability in order to determine, where appropriate, its special reception needs. These special needs are also taken into account if they become manifest at a later stage of the asylum procedure. The information attesting to a particular situation of vulnerability, after agreement of the claimant, is transmitted by the French Immigration and Integration Office to the French Refugee and Stateless Protection Agency. »
86. If the CNCDH welcomes the consideration of the situation of vulnerable persons, the assessment should in no way be carried out at the expense of asylum seekers who do not meet the vulnerability criteria set out above. In other words, the assessment of "violability" should not be a reason for excluding accommodation, accompaniment or care (149). The CNCDH recalls in this regard that all asylum seekers have the right to benefit from material reception conditions guaranteeing a dignified standard of living, which requires the allocation by the State of means in line with the needs of all the structures responsible for ensuring this reception, accompaniment and care.
87. The CNCDH intends to ensure that the provisions of the directive do not lead to the creation of a social support system dedicated to the only persons identified as " vulnerable" and therefore recommends, above all, to improve the national system of common law, so that it can better meet the real needs of all asylum seekers. As such, each of them must be able to quickly benefit from a preventive visit to socio-health professionals, including mental health, if they so request and whatever their vulnerability. The time limit for the issuance of a disease protection must not justify delay in this voluntary visit.
88. In addition, the use of tools to identify "violability" cannot overcome the lack of means dedicated to accompanying and providing care. These tools must be appreciated and validated by the responsible authorities, in particular by the Ministry of Health and Social Affairs; They must also be discussed in a multidisciplinary manner with the relevant institutions (university authorities, recognized scholarly societies, etc.) in order to avoid the creation of a specialized industry for asylum seekers under the responsibility of the Ministry of Interior. In these circumstances, the CNCDH regrets that the detection of vulnerability is entrusted to a public body under the supervision of the Ministry of Interior. It therefore recommends an amendment to article L. 744-6 of the ECSEDA on this issue.
89. Finally, "vulnerability" must be identified throughout the asylum seeker's journey, not exclusively upstream or when filing the claim. In this regard, the CNCDH recommends clarification of article L.744-6 of the CESEDA, whose current drafting, insufficiently explicit, seems to favour the detection of vulnerability at the beginning of the proceedings and not throughout the proceedings.
(Adoption: unanimous.)
Summary of key recommendations
Recommendation 1: CNCDH recommends that the public authorities value the associative know-how and strengthen the financing of associations to carry out their missions in good conditions. In particular, she must pay tribute to the considerable work and exemplary dedication of the associations involved in the reception, orientation, accommodation and support of asylum seekers.
Recommendation 2: The CNCDH recommends the urgent simplification of the law on the right to asylum.
Recommendation No. 3: The CNCDH recommends that all formulations and terminology be deleted from the bill, maintaining an unreasonable confusion between asylum and immigration issues (e.g., the use of the vocable "foreign"), as well as those that may be interpreted as the expression of a mistrust of principle manifested with respect to those who seek international protection (e.g., the recurring use of the border of such denials
Recommendation 4: CNCDH recommends that the definition given by UNHCR in CESEDA should be devoted to the grounds for fears of persecution that belong to a certain social group.
Recommendation 5: CNCDH recommends facilitating the residence of asylum seekers.
Recommendation No. 6: CNCDH recommends the removal of the prefecture passage. At the very least, if it were to be maintained, she would ardently like the extreme simplification.
Recommendation No. 7: The CNCDH recommends that an authority that is not under the supervision or under the executive's hierarchical authority entrust all matters relating to the access to the French territory of asylum seekers and the decision to be taken on the granting of international protection.
Recommendation No. 8: The CNCDH recommends that the asylum application be registered within three days.
Recommendation No. 9: The CNCDH recommends that all those seeking international protection, without distinction, be given a genuine right to stay in French territory during the period of asylum proceedings.
Recommendation No. 10: The CNCDH recommends that the difficulties relating to the orientation of the asylum procedure be addressed by guaranteeing the rights of applicants subject to a Dublin procedure by the systematic application of humanitarian and sovereignty clauses. In addition, the CNCDH is opposed to the possibility of placing asylum seekers in custody.
Recommendation No. 11: The CNCDH recommends that the decision to place more guarantees in expedited proceedings should be taken by the sole authority responsible for the determination to decide on the direction of the asylum procedure. It also recommends that the CNDA, in the event of an expedited decision to place an impaired procedural violation, cancel the case and return the asylum application to the OFPRA.
Recommendation 12: CNCDH recommends prohibiting the placement of foreign isolated minors in accelerated proceedings.
Recommendation No. 13: CNCDH recommends that the reasons for placing in expedited proceedings be reviewed, with particular reference to its firm opposition to the notion of "safe country".
Recommendation No. 14: CNCDH recommends that assistance be guaranteed when filing the asylum application:
- informing applicants, in a language they understand, of the procedure to be followed and their rights and obligations during the proceedings, allowing them to benefit from the services of an interpreter free of charge;
- allowing them to benefit from the services of an interpreter free of charge.
Recommendation No. 15: The CNCDH recommends that the examination of asylum applications be conducted at the border with greater guarantees, inter alia, by recalling that the assessment of the admissibility of such applications cannot in any case be considered on the merits of the fears of persecution invoked by the individual.
Recommendation No. 16: The CNCDH recommends the organization in the waiting area of an information permanence and legal permanence under legal aid.
Recommendation 17: CNCDH recommends improving the examination of the asylum application in the territory by strengthening the quality of the hearings and that of the transcript. In addition, the principle of the adversarial requires that the discussion on the transcript of the interview and its communication take place systematically before the decision is taken, whether the procedure is normal or accelerated.
Recommendation No. 18: CNCDH recommends that:
- the applicant shall be informed before the maintenance of the opportunity to be assisted by counsel;
- the applicant may present himself to the interview accompanied by a lawyer or a representative of an association for the defence of the rights of aliens or asylum seekers, being specified that the effectiveness of this guarantee will depend on the means for this assistance;
- Council can play an active role during the interview and not only at the end of the interview.
Recommendation No. 19: The CNCDH recommends that any reference to evidence be deleted in the provisions of the Bill relating to the OFPRA's assessment of the asylum application. It also recalls that the principle of intimacy is opposed to the determination of any rule governing the assessment of a claim and prohibits the priori determination of the probative value of an index or any other factual element. It particularly recommends that the new provisions establish no hierarchy between "fears of persecution" and "persecutions already suffered".
Recommendation No. 20: CNCDH recommends that the duration of the asylum procedure be reduced by excluding any freezing of the processing of applications. The proceedings before the OFPRA must be supervised within 6 months, stating that the reduction of time limits must not affect the effectiveness of the procedural guarantees recognized to asylum seekers.
Recommendation No. 21: The CNCDH recommends that any decision by the OFPRA to be inadmissible be conditioned by the requirement for effective protection in the State concerned - whether or not it is a member of the EU - and the possibility of readmission. The CNCDH also recommends that the CNDA, in the event of a decision to be granted an impermissible violation of the legality, cancel the legality and return the asylum application to the OFPRA.
Recommendation No. 22: CNCDH recommends improving the legal regime of closing decisions.
Recommendation No. 23: CNCDH recommends that a suspensive remedy be instituted in full law within the framework of all asylum procedures.
Recommendation No. 24: The CNCDH recommends extending the time limit for appeal against decisions of refusal to enter French territory, decisions on the transfer of persons subject to a Dublin procedure, and decisions on the admissibility or rejection of a claimant in custody. It also recommends the transformation of time-to-time times to working days.
Recommendation No. 25: With respect to the asylum procedure at the border, the CNCDH recommends that the deadline for appeal against decisions of refusal of entry be set as the date of issuance of the OFPRA maintenance notes, so that the applicant is able to justify his appeal against the decision to reject the Office.
Recommendation No. 26: CNCDH recommends that CNDA decide in collegial training, whether the procedure is accelerated or normal. In front of this jurisdiction, the free choice of a human rights defender must also be preserved, including legal aid. A sufficient time for the preparation of the defence must be guaranteed.
Recommendation No. 27: CNCDH recommends guaranteeing material conditions of reception by:
- improving reception, accommodation and support, including the creation of new places in reception centres for asylum seekers;
- the amount of the temporary waiting allowance;
- strengthening the social rights of asylum seekers, in order to allow them to access the employment market after the filing of the application, to be affiliated with the general health insurance scheme and to benefit from the complementary universal health coverage.
Recommendation No. 28: CNCDH, marking its commitment to free choice by asylum seekers of their place of residence, recommends that the public authorities not opt for direct accommodation and above all not establish a system of control of asylum seekers close to a residential assignment regime. In fact, each asylum seeker must have the ability to provide himself with accommodation or to be accommodated by a third party without being penalized by the loss of his right to an allowance. While the principle of direct accommodation should nevertheless be retained, the CNCDH considers that it is necessary to obtain the consent of the claimant.
Recommendation No. 29: CNCDH recommends that the state of vulnerability of asylum seekers be taken into account in order to meet their real needs and that this be done to the detriment of those who do not have such a state of vulnerability. In addition, the use of vulnerability identification tools cannot overcome the lack of means dedicated to accompanying and providing care. These tools must be appreciated and validated by the responsible authorities, in particular by the Ministry of Health and Social Affairs; They must also be discussed in a multidisciplinary manner with the relevant institutions (university authorities, recognized scholarly societies, etc.) in order to avoid the creation of a specialized industry for asylum seekers under the responsibility of the Ministry of Interior. Finally, vulnerability must be identified throughout the asylum-seeker's path, not exclusively upstream or when the application is filed.
Recommendation No. 30: CNCDH recommends the prohibition of any deprivation of liberty for foreign isolated minors, in no case should they be placed in waiting areas or in administrative detention. For the CNCDH, the public authorities must consider that the fact for a minor to be isolated and foreign carries a presumption of danger, which in turn bases the right to access the protection of the juvenile judge. As a result, foreign isolated minors must receive legal protection and support for social assistance to children.
