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UN Committee Against Torture suspends deportation of Somali woman

12 July 2012

On 3 July 2011, French authorities decided to remove a Somali woman whose asylum claim had been rejected less than 24 hours after her arrival. The French support organisation to foreigners at the borders (Anafé - Association nationale d'aide aux étrangers aux frontières) claims this woman was at risk of persecution and that her removal would amount to "refoulement". On 11 July 2012, the UN Committee Against Torture upheld the Anafé's opinion and urged France not to deport the claimant.

Asylum claim at the border in France: an exceptional regime

Transit zones (zones d'attente) were created in France in 1992 and are limited to the area between "embarkation and disembarkation points and checking points". Since June 2011, the geographical scope was widened to any place where a group of at least ten foreigners have disembarked irregularly on the French territory.

People held in transit zone who claim asylum have their request assessed within 96 hours by the Ministry of Interior which decides if the person can enter French territory and lodge a formal application at the national asylum office, the OFPRA. Until 2007, people who were denied entry in France for the purpose of claiming asylum could appeal this decision but the appeal had no suspensive effect and the person could be removed before the full examination of the appeal.

In April 2007, the European Court of Human Rights condemned France as it failed to guarantee asylum-seekers the right to an "effective remedy" pursuant to Article 13 of the European Convention on Human Rights, and asked France to ensure that appeals lodged by asylum-seekers in transit zones have a suspensive effect. [1]

Yet, French authorities adopted a minimalist approach to the ECHR's ruling: sine the 2007 immigration law reform asylum-seekers have only 48 hours to lodge an appeal challenging the refusal to enter the territory. The appeal has now a suspensive effect until the judge makes his/her decision within the next 72 hours (Article L. 213-9). A negative decision by the judge can still be appeal at the administrative appeal court within 15 days but will have no suspensive effect. [2]

This minimalist approach was deemed "restrictive" by the Anafé as it makes it very difficult for asylum-seekers to substantiate their appeal. Besides, access to a lawyer for foreigners denied entry on the French territory in transit zones is not guaranteed, contrary to what is claimed by the authorities (see condemnation of the Ministry of Interior by the Bobigny administrative court on 4 January 2012). [3]

Moreover, it is very difficult for "rejected" asylum-seekers to be aware of the reasons for the rejection of their claim. Indeed, pursuant to a bylaw from January 2012, asylum-seekers in transit zones are only informed, when the judge makes his/her decision, about whether the appeal was successful or not. The reasons for this decision are given a few days later, provided the person has not been removed. [4]

Decision of the United Nations Committee Against Torture

Miss A., a Somali national, applied for asylum upon arrival at Roissy airport on 3 July. Her claim was deemed manifestly unfounded and her access to the territory denied in less than 24 hours. Although no interpreter in Somali language was available, she managed to lodge an appeal with the Anafé's support, which was rejected by the administrative court on 7 July. Miss A. could, at this stage, be legally removed.

As a last resort, the Anafé contacted the UN Committee Against Torture on 9 July 2012, as Miss A. belonged to a minority ethnic group and from a region in Somalia where civilian are facing high risk of indiscriminate violence, cases to which subsidiary protection should apply. [5] According to the UNHCR in March 2012:

"The widespread disregard of their obligations under international humanitarian law by all parties to the conflict and the reported scale of human rights violations make it clear that any person returned to southern and central Somalia would, solely on account of his/her presence in southern and central Somalia, face a real risk of serious harm". [6]

On 11 July, the Committee Against Torture asked France not to remove Miss A. pending the examination of her asylum claim. [7] Miss A. was eventually admitted on French territory where she will claim asylum.

Sources

[1] ECHR (2007) CASE OF GEBREMEDHIN [GABERAMADHIEN] v. FRANCE, Application no. 25389/05, 26 April 2007
[2] Anafé (2008) Le droit à un recours effectif aux frontières françaises: l'arrêt "Gebremedhin" et ses suites en France
[3] Anafé (2012) Quand le Ministère de l'Intérieur obéit à "l'impérieuse nécessité de l'emmerdement maximum"… la justice intervient!
[4] Bylaw n° 2012-89 by the French government adopted, 25 janvier 2012, on judgments by the National Court on Asylum Law and on proceedings challenging removal orders and refusals to enter French territory for the purpose of asylum
[5] Anafé (2012) ZONE D'ATTENTE DE l'AÉROPORT DE ROISSY: LA FRANCE NE DOIT PAS REFOULER UNE DEMANDEUSE D'ASILE VERS LA SOMALIE
[6] UNHCR (2012) Addendum to 2010 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Somalia, relating specifically to the city of Galkacyo
[7] Anafé (2012) ZONE D'ATTENTE DE l'AÉROPORT DE ROISSY: LA FRANCE EMPECHEE DE REFOULER UNE DEMANDEUSE D'ASILE VERS LA SOMALIE