In 1954 , France ratified the Geneva Convention on the Status of Refugees of 28 July 1951 (commonly referred to as the 1951 Refugee Convention) which provides for the international protection of “refugees”, a term defined in article 1 of the Convention.
In France, the requirements for obtaining refugee status are laid down in the Law of 25 July 1952, which confers the granting of such status to the French Office for the Protection of Refugees and Stateless Persons (OFPRA), a public body under the authority of the Foreign Ministry, and an administrative court, the Refugee Appeals Board, which is placed under the supervision of the Conseil d’Etat.
The Law of 1952, now known as the Law on the Right to Asylum, remained relatively unchanged until the enactment of the Laws of 11 May 1998 and 10 December 2003( now included in the Admission and residency of aliens and Asylum code). Article 2 of the Law provides that from 1 January 2004, requests for refugee status shall be subject to a single inquiry, after which :
1°) refugee status will be granted to any person :
- who is persecuted due to his or her for his activities in pursuit of freedom (introduced by the Law of 11 May 1998 and taken from the fourth paragraph of the Preamble of the Constitution of 1946), or
- in respect whom the UN High Commissioner for Refugees (UNHCR) has extended its competence under the terms of Articles 6 and 7 of its statutes, as adopted by the UN General Assembly on 14 December 1950,
- who meets the definition set forth in Article 1 of the 1951 Refugee Convention .
2°) the subsidiary protection of France is granted to a refugee seeker who does not meet the requirements laid down for refugee status, but who has established that he or she is exposed to one of the following serious threats in his or her country :
- torture, inhuman or degrading treatment
- threats against his or her life or person resulting from an armed conflict.
I. Nature and organization of the appeals board
The Refugee Appeals Board is an administrative court which hears appeals filed by foreigners and stateless persons in respect of whom the general Director of the OFPRA has, for whatever reason, refused or withdrawn refugee status. Moreover, since the law of 10 December 2003, the Refugee Appeals Board may also hear appeals which the general Director of the OFPRA may make against a positive decision of the Appeals Board (granting protection).
The Conseil d’Etat (Supreme Administrative Court) stated in a decision of 29 March 1957 that the Appeals Board was indeed a judicial body, even though this was not expressly laid down either in the Law of 25 July 1952 or in the Decree of 2 May 1953. This now is explicitly set out in article 5.I of the statute, and found also in the decision 2003-485 DC of the Constitutional Council of 4 December 2003 which held that the independence of the Refugee Appeals Board vis-à-vis the OFPRA is an essential guarantee for the right to asylum.
In its role as a “Plein contentieux” Judge, the Appeals Board has the power to confer the status of refugee (or the benefit of the subsidiary protection) on an applicant on the basis of all the evidence available at the time of judgment, including information which the OFPRA did not have when it ruled on the application (Conseil d’Etat, Section, 8 January 1982, M. A.).
The decision by which the Appeals Board grants the refugee status (or the benefit of the subsidiary protection) is in effect res judicata (Conseil d’Etat, Assembly, 1st April 1988, M.B.). This characteristic of the Appeals Board’s decisions, prevented them from being being withdrawn, even if taken on the basis of fraud, unless they were subject to an action in review (Conseil d’Etat Section, 5 décembre 1997, M.O.). The decree of 14 August 2004 henceforth fills this gap by allowing the General Director of the Office the possibility of referring such actions in review to the Refugee Appeals Board.
In addition to its function as a court, the Appeals Board examines requests from individuals with refugee status who are the subjects of one of the measures provided for in Articles 31, 32 and 33 of the 1951 Refugee Convention and provides opinions on whether to maintain or revoke such measures (i.e. escorting the refugees back to the border, deportation, placing under forced residence etc.). Only in such a case, the Appeals Board acts as an advisory administrative authority.
Structure and Composition of the Appeals Board:
Initially made up of a single panel, the Board has from the beginning of the 80s been divided into a series of sections. The number of sections has varied according to the number of appeals. Thus, between 1 January 2002 and 1 January 2006, there was an increase from around forty to nearly one hundred and forty such sections. The sections are made up of a President, who presides over, and ensures the proper conduct of, the hearings and of two assessors designated, one by the United Nations High Commission representative in France for refugees, among qualified persons of French nationality, subject to the confirmation by the Vice-President of the Conseil d’Etat, the other designated by the Vice-President of the Conseil d’Etat from amongst the qualified people proposed by one of the Ministries represented on the OFPRA’s Board of Directors.
This presence of UNHCR representatives on the Refugee Appeals Board is one of the innovative features of the French system. The Appeals Board is indeed the only court in France in respect of which a representative of an international organization sits and is entitled to speak and vote.
In 1998, the law relative to the entry and residence of foreigners in France and the right to asylum, was referred to the Conseil Constitutionnel (Constitutional Council). The Conseil Constitutionnel held that the presence of representatives of the UNHCR on the Refugee Appeal’s Board, and their role in determining refugee status based upon article 1 of the Geneva Convention as well as that of “constitutional asylum”, was not incompatible with constitutional rules. The question of the extension of the jurisdiction of the Refugee Appeals Board to the subsidiary protection, under the law of 10th December 2003, was not referred to the Conseil Conseil Constitutionnel.
Within the Board there is a panel of judges know as the “Combined Section” and instituted by the decree of 3 July 1992, whose function it is to settle questions of law that have no precedent and also to ensure that the Board’s case law remains consistent. A case may be brought before this panel, either on the initiative of one of the ordinary panels of judges, or on the initiative of the President of the Appeals Board. These “Combined Sections” are normally chaired by the Appeals Board President and are comprised of the judges of the appeals section and two other sections (which are appointed annually). The least senior President of these latter Sections does not preside in order to leave his position to the Appeals Board President.
The Appeals Board is chaired by a member of the Conseil d’Etat appointed by the Vice-President of the Conseil d’Etat. The President of the Appeals Board, in addition to his overall responsibility for the work of of the Appeals Board, has three judicial functions. One is specific, which is the Presidency of the so-called “Combined Section.” The two other functions are similar to those of the Presidents of Sections: they involve, on the one hand, undertaking the Presidency of an ordinary panel of judges and, on the other hand, the power to decide by order on the following matters: to give official notices of withdrawals; to state that there is no matter on which to give a ruling in an appeal; to reject appeals with obvious grounds for inadmissibility unlikely to be rectified during proceedings, or that present no serious elements likely to undermine the reasons for the decision taken by the General Director of the OFPRA.
A General Secretary, appointed by the the Deputy-Chairman of the Conseil d’Etat , as well as the two Deputy- Presidents appointed by the President from the Presidents of Sections, assists the President in the functions and the supervision of the efficiency working of the jurisdiction. An assistant secretary is in charge of the Clerk’s Office, another assistant secretary is charged with the administrative and financial management of the Refugees Appeals Board.
The sections are brought together in groups of 6 to 8 sections in order to benefit from the assistance of a dozen departmental heads who organize the work. They are assisted by rapporteurs who are in charge of investigating the requests for recognition of refugees status but who are not entitled to vote ( article R733-3 of the Admission and residency of aliens ans asylum code ).
II. The Appeals Board’s Rules of Procedure
There is no fee for bringing proceedings before the Refugee Appeals Board (Article R733-2). The proceedings are governed by the general rules of administrative procedure.
There are however particular features of the procedure before the Refugee Appeals Board, such as the deadline for appeal, which is not two months, as in ordinary proceedings before the administrative courts, but one month (Section 19, Decree of 14 August 2004).
Filing an Appeal: Deadline and Documentary Requirements
Asylum seekers have one month from the date on which they are notified of the decision of the OFPRA rejecting their application to file an appeal with the Appeals Board. Given this short timeframe, the Appeals Board takes the relevant date as the date of the postmark (i.e. when the appeal notification was sent) and not the date on which the Board actually receives it.
In French administrative law, there is a general rule that applies to “plein contentieux”appeals, according to which, where no decision is made by the administration in response to a request by a person, then after four months it is to be assumed that the response is a negative one and the relevant time-limits for an appeal start to run. It has been held that in the case of decisions of the Director of the OFPRA, this time-limit does not apply. (Refugee Appeals Board, 20 July 1993, M.A.).
The rules of procedure require a written application giving reasons for the appeal. This application is not a mere formality, and if it does not adhere to the rules, the appeal will be rejected. The application must set out the grounds for appeal and be written in French; otherwise it is dismissed as inadmissible. In this regard, the Conseil d’Etat has held that the Appeals Board’s secretariat does not need to to invite an applicant to remedy an application that gives no grounds or is not written in French. If the applicant fails to produce a statement of the grounds of appeal or a translation in French before the deadline for appeal, the appeal is considered to be inadmissible (Conseil d’Etat 22 March 1989, Miss M.).
There is no burden of proof per se at Board hearings, but it is nonetheless beholden upon applicants to include in their applications all information they wish to rely upon in their application. The Appeals Board does not rule on the legality of the OFPRA’s decision per se, but rather on whether or not the person has the right to be granted refugee status based on all the information available on the day it adjudicates the case, including information which the OFPRA did not have at the time it made its decision (Conseil d’Etat, M.A. cited above).
An Appeal Suspends the Effects of the Decision Rejecting the Application:
It is important to note that an appeal to the Board automatically suspends the effects of the decision of the Director of the OFPRA. Consequently, the applicant has his or her provisional resident’s authorisation renewed until the decision of the Board is made, except, in accordance with article 10 of the law of 25 July 1952, if it is a case as provided for by article 8 of this law: danger to public order, abusive procedure, nationals of a country for which provisions of article 1, C, 5 of the Geneva Convention have been implemented or a country considered to be a secure native country. The list of these countries is, in accordance with paragraph 1 of article 3 of the law, laid down by the administrative council of the OFPRA until the adoption of the community provisions to this effect.
An Adversarial Appeal Process:
The Refugee Appeals Board’s appeal process is adversarial as before all jurisdictions. Thus, the Appeals Board informs the OFPRA that an appeal has been filed against its decision and asks it to forward the application made as well as to provide written observations on the appeal. However, the OFPRA is not under any obligation to produce such observations and the Appeals Board’s Chairman is not required to make a formal request for them to be produced (Council of State, 17 April 1991, Mrs. T.). When the OFPRA produces observations, the Appeals Board is under an obligation to communicate them to the applicant if he/she requests them (Conseil d’Etat, 9 September 1993, M.L).
Applicants’ Hearings:
While the Refugee Appeals Board’s hearings rely essentially on written documentation, part of the process is oral. Applicants can present oral submissions to the Appeals Board and may be represented by a lawyer at this hearing (Article L733-1).
This oral hearing before the Board is important. The applicant must be informed of the possibility of being summoned to a public session in order to present his or her verbal observations. The applicant must subsequently be officially summoned to such a hearing if he or she has so requested (CE, section, 26 July 1978, M.A.). These procedural guarantees linked to the right of summons, have been extended by the Board. Since 1 January 1995, all applicants, whether they request it or not, are summoned to a hearing, unless their appeal, is obviously inadmissible or devoid of serious grounds and thus is dismissed by means of an Order of the Board.
While the Appeals Board is required to reply to all the written grounds of appeal, it is not required to respond to submissions only made orally (Conseil d’Etat, 7 October 1991, M.T.).
The hearing is the oral part of the procedure. Hearings are open to the public, except when for reasons related to public order the case is heard in private. (Article R733-17). The presiding judge, who is responsible for maintaining order during the hearing can, at the applicant’s request, decide that the case should be heard in private.
The applicant receives a summons three to four weeks before the hearing. For those applicants who do not speak French, the Appeals Board has interpreters to translate the proceedings.
The applicant who wishes to be represented by a lawyer, may benefit from legal aid if the following three conditions are satisfied: that of their legal entry into France, of lack of resources and of the character of their appeal, which should not be obviously inadmissible or unfounded. An appeal against the decision of non-acceptance for legal aid taken by the Legal Aid bureau attached to the Appeals Board may be exercised, under certain conditions, before the President of the jurisdiction.
The lawyer can give the Appeals Board notice of his/her intention to defend an applicant at any time.
Judgements and Further Means of Redress:
After hearing the rapporteur of the Board who inquired into the case, and, if the need arises, the applicant’s lawyer and, in any event when he is present, the applicant himself, the panel of judges takes its decision during a deliberation which takes place in private. The decision of the Board is notified to the applicant within three weeks of the hearing.
Appeals to rectify a material error in one of its decisions can be referred to the Appeals Board. To be admissible, such appeals rely on the existence of a material error that affected the findings of the decision.
The Appeals Board is subject to the control the Conseil d’Etat (where the decision may be quashed). Such cases must be referred to the Conseil d’Etat within two months. Such an application for quashing must be made by a lawyer with rights of audience before the Conseil d’Etat and is submitted to a preliminary admission procedure. This application does not suspend the effects of the Appeals Board’s decision, which is considered to be res judiciata.
