Accelerated procedure

France

Author

Forum Réfugiés - Cosi

Since the reform of the law on asylum, “prioritised procedures” (procédures prioritaires) have become “accelerated procedures”. The provisions related to accelerated procedures apply to asylum claims introduced as of 1 November 2015. All claims channelled under “prioritised procedures” before 1 November 2015 are still processed according to the old procedure. Therefore, these asylum seekers do not have access to all material conditions (can be accomodated in emergency reception facilities) and appeal against a negative decision of their claim has no suspensive effect.

A transitory regime has been implemented regarding asylum claims registered in between 20 July 2015 and 1 November 2015. During this period, it could be possible, even if the reform law had been adopted and the tranposition delay of the directive had been closed, to register asyum claims under prioritised procedures and then, to refuse the suspensive effect of an appeal challenged to the CNDA. The Administrative Court of Lyon held in 30 May 2016 this transitory regime was unlawful and that all the procedral guarantees haa to be applied to asylum clams registered during this period.1

      

General (scope, grounds for accelerated procedures, time limits)

The reasons for channelling an asylum seeker into an accelerated procedure are outlined in Article L.723-2 Ceseda. The accelerated procedure is automatically applied where:

a.     The foreign national seeking asylum originates from a safe country of origin; or

b.    The seeker’s subsequent application is not manifestly unfounded.

The asylum claim will be channelled under the accelerated procedure, where the Prefecture has reported that:

c.     The asylum seeker refuses to be fingerprinted;

d.    When registering his or her claim, the asylum seeker has presented falsified identity or travel documents, or provided with wrong information on his or her nationality or on his or her conditions of entry on the French territory or has introduced several asylum claims under different identities;

e.     The claim has not been registered within 120 days after the foreign national has entered the French territory;

f.     The claim has only been made to prevent a notified or imminent removal order; or

g.    The presence of the foreign national in France constitutes a serious threat to public order, public safety or national security.

In the above mentioned cases, the Prefecture decides to channel related claims under accelerated procedure and refers the claims to OFPRA for the office to process them under accelerated procedure. It is not from the initiative of OFPRA. In that case, the asylum claim certification specifically mentions that the asylum seeker is placed under accelerated procedure. While before the reform the Prefecture was sending the asylum claim of seekers under “prioritised procedures” to OFPRA, asylum seekers under accelerated procedure now have to send the asylum claim form to OFPRA within 21 days, similarly to asylum seekers under regular procedure.

While processing an asylum claim, OFPRA also has the competence to channel a claim under an accelerated procedure where:

a.     The asylum seeker has provided falsified identity or travel documents, or wrong information on his or her nationality or on his or her conditions of entry on the French territory or has introduced several asylum claims under different identities;

b.    The asylum seeker has supported his or her claim only with irrelevant questions regarding his or her claim; or

c.     The asylum seeker has given manifestly contradictory and incoherent or manifestly wrong or less likely statements that are contradictory to country of origin information.

In any of the abovementioned cases, OFPRA can decide not to process a claim under accelerated procedure when this is deemed necessary, in particular when an asylum seeker originating from a country listed on the safe country of origin list calls upon serious grounds to believe that his or her country of origin might not be safe considering his or her particular situation.

In addition, specific procedural safeguards shall be implemented by OFPRA to meet a vulnerable asylum seeker’s special needs.2 In that respect, OFPRA can process claims of vulnerable applicants under the prioritised procedure (see section on Regular Procedure: Fast-Track Processing) or decide not to process it under accelerated procedure.3

As in the regular procedure, OFPRA is the authority responsible for the decision at first instance in accelerated procedures. Its decisions should in theory be made within 15 calendar days.4 This period is reduced to 96 hours if the asylum seeker is held in administrative detention.5 There is no specific consequence if the Office does not comply with these time limits. In practice, all the stakeholders assisting asylum seekers have reported that most of them under the accelerated procedure wait for months before receiving the decision from OFPRA.6 In 2015, however, the average period for the examination of first asylum requests in prioritised procedure was 97 days.7

According to Ministry of Interior estimates, an approximate 23,900 first applications were channelled into the accelerated procedure in 2016, representing 32% of the total first applications caseload.8 The prioritised procedure represented 28.4% of the total of asylum caseload in 2015, against 33.4% in 2014. Placement under a prioritised procedure often resulted from the use of the safe country of origin concept, from evaluations carried out by the Prefectures that the applications are abusive (suspected falsification of identity) and from the frequent use of the prioritised procedure for asylum requests lodged from administrative detention centres, even though the latter is in constant decrease for a couple of years (6.5% in 2015).9

 
 

Interviews of asylum seekers channelled into an accelerated procedure take place under the same conditions as interviews in a regular procedure (see section on Regular Procedure: Personal Interview). All personal interviews are conducted by OFPRA. The same grounds for omission apply.

For first asylum applications processed under the prioritised procedure (excluding subsequent applications), 96.3% of the applicants were called for an interview in 2015. In case of subsequent applications, this rate goes down to 8.8%.10

Video conferencing is mainly used for asylum applicants in overseas departments (79%)11 and for 16% of asylum seekers held in administrative detention centres,12 most of whom were, up to now, channelled into the accelerated procedure. In addition, according to the reform of the law on asylum, video conferencing can be used in case an asylum seeker cannot attend the interview for medical or family reasons.

 

Appeal

The procedure for appeal before the CNDA is similar to the one in the regular procedure. Persons channelled into an accelerated procedure must appeal within the same time period: 1 month after the negative decision. This appeal has suspensive effect. The main difference is that in accelerated procedure the decision has to be given by a single judge within 5 weeks.

As the preparation of these appeals is hardly supported by NGOs, not least since assistance to draft the appeal was removed from the mandate of the orientation platforms by the new reference framework in 2011, asylum seekers may not be aware of these deadlines and face serious difficulties in drafting a well-argued appeal. They can nonetheless lodge a request to benefit from legal aid (“aide juridictionnelle”).

Together with many other stakeholders such as UNHCR,13 Forum réfugiés – Cosi has called for many years for a suspensive appeal for all asylum seekers, regardless of the procedure applied to them. In that sense, the introduction of a suspensive effect for appeals against negative decisions in the accelerated procedures, guaranteed in the Law on asylum of 29 July 2015, constitutes a real improvement. Indeed, the lack of suspensive effect could have serious consequences when a return decision was taken by the Prefecture following a negative decision from OFPRA on the asylum application. Some Prefectures systematically ordered returns with compulsory removal orders from France, after this decision.

The decision of OFPRA or of the Prefectures to channel an application under the accelerated procedure (in cases listed from (c) to (j) included) cannot be challenged separately from the final negative decision on the asylum claim.14 As far as cases (a) and (b) are concerned (claims channelled under accelerated procedure for safe country of origin or admissible subsequent application grounds), the law does not stipulate whether a separated appeal from the final negative decision can be introduced or not.

Regardless of this specific appeal, in any case of placement under the accelerated procedure, including safe country of origin cases or subsequent applications, it is possible for OFPRA15 and CNDA16 to channel an asylum seeker into the regular procedure if his or her personal situation prevents him or her from following the accelerated procedure, considering especially his or her peculiar vulnerability or the alleged grounds of the asylum claim. This prerogative has been integrated in order to propose an alternative means to contest the placement under the accelerated procedure. In practice, this faculty is rarely used by OFPRA.       

 

Legal assistance

Legal assistance at first instance

In theory, asylum seekers channelled into an accelerated procedure have the same rights with regard to access to legal assistance as those in a regular procedure. This shall be strengthened with the implementation of the reform of the law on asylum. Indeed, before the reform asylum seekers placed under accelerated procedures had limited access to material reception conditions and therefore to free legal assistance provided in CADAs. As they are entitled to the same reception conditions as asylum seekers under regular procedure, their access to free legal assistance at first instance will be the same as for asylum seekers under regular procedure.

 

Legal assistance at the appeal stage before the CNDA

In theory, the right to legal assistance at the appeal stage before the CNDA is the same for asylum seekers under regular procedure and under accelerated procedure. However, the delay to process the appeal is different: the CNDA has to process appeals of negative decisions of claims under accelerated procedures within 5 weeks. This short timeframe might prevent asylum seekers under accelerated procedure to have an effective access to legal assistance. Indeed, court-appointed lawyers inform the Office for legal aid of their availability 6 months in advance but this information is not reported into the “availability files” of the CNDA. Therefore, court-appointed lawyers might not be available to attend the hearing they have been designated for. Finally, even though court-appointed lawyers are able to attend the hearing chances that they will be able to meet with the applicant ahead of the hearing are very low.

  • 1. Administrative Court of Lyon, Decisions No 1603864, 30 May 2016, and No 1606341, 22 August 2016.
  • 2. Article L.723-3 Ceseda.
  • 3. Ibid.
  • 4. Article R.723-3 Ceseda. Delays are even shorter (96 hours) for persons held in administrative detention centres and in waiting zone.
  • 5. Article R.723-4 Ceseda.
  • 6. This information has been collected to Forum réfugiés – Cosi social workers in Lyon, Clermont-Ferrand and Marseille but also to other NGOs in Paris and its surroundings, Bretagne, Charentes-Maritimes, Somme or Lorraine.
  • 7. OFPRA, 2015 Activity report, 13 May 2016, 41.
  • 8. Ministry of Interior, La demande d’asile, 16 January 2017.
  • 9. Ibid.
  • 10. OFPRA, 2015 Activity report, 13 May 2016, 63.
  • 11. Ibid.
  • 12. Ibid.
  • 13. UNHCR, Submission for the Compilation established by the OHCHR, Universal Periodic Review, French Report, July 2012.
  • 14. Article L.723-2 VI Ceseda.
  • 15. Article L.723-2, V Ceseda.
  • 16. Article L.731-2 Ceseda, as amended by Law n. 2016-274 of 7 March 2016.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti