B.A. vs French Office for the Protection of Refugees and Stateless Persons (OFPRA) [Decision of 20 September 2017]
The applicant's application was rejected by OFPRA. After having appealed the decision, the National Court of Asylum canceled this decision and referred the request to the OFPRA for a new examination.
By an appeal, OFPRA requests the Council of State:
1°) to annul this decision;
2°) to refer the case to the National Court of Asylum.
The Council of State draws the consequences of the new regime known as of “family request” instituted by the law of September 10, 2018 (Article L.741-1) regarding the accompanying minors.
As soon as an asylum application is deemed to have been submitted by each of the minor children accompanying an asylum seeker, the single decision taken by OFPRA is also made with regard to the children.
Although the minor's request is not, in the context of the "family request", the subject of a separate examination and does not in particular benefit from the guarantee of an individual interview. On the other hand, the request introduced directly by a minor after the definitive rejection of a family request must necessarily be regarded as a request for reconsideration.
The State Council considers that the restrictions on the principle of hearing by OFPRA applicable in matters of review, provided for in article L.723 -16 of CESEDA, are normally applicable. The existence of a previously processed family asylum application will not constitute an obstacle to hearing an accompanied minor during a request for reconsideration as soon as he is able to invoke facts or new elements significantly increasing the likelihood that the claimant can justify the conditions required to claim protection, which was not the case, for the appellant.
The Council of State considers that when the OFPRA receives a request from a minor after one of his parents has already submitted an asylum request, the minor's asylum request must be processed as a request for reconsideration, for which, according to the provisions of article L. 723-16 of the CESEDA, the Office may not carry out an interview
For these reason the Council of State null the decision of the CNDA.
Access to procedures; First Instance determination; Vulnerable Group;
EASO Courts and Tribunals Network
France,FR: Council of State [Conseil d'État], B.A. vs French Office for the Protection of Refugees and Stateless Persons (OFPRA) [Decision of 20 September 2017], 06/11/2019, ECLI:FR:CECHR:2019:422017.20191106FR: The Council of State considers that OFPRA is not obliged to conduct an oral interview when it comes to a minor's application submitted after the application of one of his parents.