Asylum seekers lived on the streets for several months without financial assistance despite legal provisions. Humiliating treatment from France

JUDGMENT

N.H. and others v. France 02.07.2020 (app. no.28820/13, 75547/13 and 13114/15)

see here 

SUMMARY

The applications concerned five asylum-seekers, single men, living in France. They complained that
they had been unable to receive the material and financial support to which they were entitled
under French law and had thus been forced to sleep rough in inhuman and degrading conditions for
several months.

The Court observed that the applicant N.H. had been living in the street without any resources; this
was also the case for K.T. and A.J. who had only received the Temporary Allowance after 185 and
133 days respectively. In addition, before being able to register as asylum-seekers, N.H., K.T. and A.J.
had been forced to survive for a certain period without any evidence of that status.

The French authorities had failed in their duties under domestic law. They were found responsible
for the conditions in which the applicants had been living for several months: sleeping rough,
without access to sanitary facilities, having no means of subsistence and constantly in fear of being
attacked or robbed. The applicants had thus been victims of degrading treatment, showing a lack of
respect for their dignity.

The Court found that such living conditions, combined with the lack of an appropriate response from
the French authorities and the fact that the domestic courts had systematically objected that the
competent bodies lacked resources in the light of their status as single young men, had exceeded
the threshold of severity for the purposes of Article 3 of the Convention. The three applicants N.H.,
K.T. and A.J. had thus found themselves, through the fault of the French authorities, in a situation
that was incompatible with Article 3 of the Convention.

PROVISION

Article 3

PRINCIPAL FACTS

Application no. 28820/13 – N.H.

The applicant N.H., who was born in 1993, is an Afghan national who lives in Paris. Having arrived in
France in March 2013 he obtained a postal address with the association France Terre d’Asile. On
4 April 2013 he filed an asylum application at the Paris Police Prefecture and was given an
appointment for 9 July 2013. On 18 April 2013 he lodged an urgent application with the
Administrative Court of Paris seeking an order obliging the authorities to examine his asylum application and to issue him with a provisional residence permit. The urgent applications judge
rejected his request. N.H. appealed against this decision before the Conseil d’État (highest administrative court). The urgent applications judge of that court rejected his application. On
3 October 2013 N.H. was informed that his asylum application would be examined by the French
Office for the Protection of Refugees and Stateless Persons (OFPRA), but that he was not allowed to
reside in France with asylum-seeker status as he had already lodged an asylum application in
Denmark. On the same day N.H. went to the job centre to apply for the Temporary Allowance due to
asylum-seekers. This allowance was refused on the grounds that he had not submitted the letter
informing him that OFPRA had registered his asylum application. The applicant was forced to live
rough, without any material or financial support. On 13 November 2013 OFPRA refused to grant him
refugee status, but granted him subsidiary protection because of the violence prevalent in his
province of origin. On 17 December 2013 the association Corot Entraide Auteuil, 60% subsidised by
the State, found him accommodation.

Application no. 75547/13 – S.G., K.T. and G.I.

The applicant S.G., who was born in 1987, is a Russian national who lives in Carcassonne. He arrived
in France on 15 July 2013 and the next day lodged an asylum application at the Prefecture. He was
offered accommodation in a reception centre for asylum seekers (CADA), acceptance of this offer
being a condition for receiving the Temporary Allowance. But as there was no space available, he
had to live in a tent lent by private individuals on the banks of the Aude. On 2 August 2013 the
OFPRA registered his asylum application. On 18 September 2013 he was granted the Temporary
Allowance. On 7 October 2013 he applied to the urgent applications judge of Montpellier
Administrative Court for an order instructing the State to find him accommodation as an asylum
seeker. The judge rejected his request. On 13 October 2014 OFPRA rejected his application. The
Prefect of the Hérault département issued him with three successive orders to leave France. S.G.
appealed, seeking to have them annulled.

The applicant G.I., who was born in 1988, is a Georgian national who lives in Carcassonne. He arrived
in France on 25 May 2013 and on 28 May filed an asylum application with the Prefecture of the
Languedoc-Roussillon region. He was sleeping rough.

The OFPRA registered his asylum application on 19 June 2013 and he was granted the Temporary
Allowance on 23 August 2013. On 7 October 2013 G.I. applied to the urgent applications judge of
Montpellier Administrative Court for an order similar to that sought by S.G., but the judge rejected
the application on the same grounds.

On 11 April 2014 G.I. withdrew his asylum application and sought assistance for his voluntary return
to his country of origin.

The applicant K.T., who was born in 1990, is a Russian national who lives in Carcassonne. He arrived
in France on 7 January 2013 and filed an asylum application with the Prefecture. His application was
registered on 14 June 2013 by the OFPRA and he received the Temporary Allowance from 15 July
2013. He had to live in a tent on the banks of the Aude. On 7 October 2013 K.T. applied to the urgent
applications judge of Montpellier Administrative Court for an order similar to that sought by S.G.,
but the judge rejected the application. On several occasions K.T. tried, in vain, to obtain a residence permit.

Application no. 13114/15 – A.J.

The applicant A.J., an Iranian national, was born in 1974 and lives in Paris. He managed to flee Iran,
where he had worked as a journalist, and reached France on 9 September 2014. He was given a
postal address on 14 October 2014 by the association France Terre d’Asile. A.J. went to the Paris
Police Prefecture on 23 October 2014 to file his asylum application, which was not registered, and he
was given an appointment for 7 January 2015. On 4 November 2014 he applied for accommodation to the Prefect of the Ile-de-France region, who replied that he could not grant his request due to the lack of capacity in the national asylum-seeker reception system. On 13 November 2014 A.J. lodged
an application with the urgent applications judge of the Paris Administrative Court for an order
instructing the Prefect to examine his application for residency under asylum law and to direct him
to a reception or accommodation centre. The judge rejected his request. The Conseil d’Etat also
rejected the application. At a meeting at the Prefecture on 7 January 2015, A.J. received an
application form for residency under asylum law, which he completed on 22 January 2015, the date
on which he was granted a temporary residence permit to remain in France. On 28 January 2015 A.J.
went to the job centre to claim his entitlement to the Temporary Allowance, but it refused to
register his application as he was unable to present an acknowledgment of receipt of his asylum
application.

OFPRA registered his asylum application on 5 February 2015. On 12 February 2015 A.J. was granted
the Temporary Allowance. From 14 April 2015 he was accommodated in a hotel as part of the hotel
accommodation scheme for single adults. On 23 April 2015 OFPRA granted him refugee status and in
June 2015 he found accommodation in Paris in the “House of Journalists” in a single room. He also
received daily restaurant and transport tickets.

THE DECISION OF THE COURT…

Article 3

The Court considered it appropriate to examine the applicants’ allegations under Article 3 of the
Convention taken alone.

G.I.’s lawyer (application no. 75547/13) had informed the Court that he had been unable to contact
his client, despite several attempts and unsuccessful searches. It concluded that the applicant no
longer intended to pursue his application and that the case should therefore be struck out of the list
as far as he was concerned.

The Court noted that the applicants had criticised the French authorities, first, for not enabling them
to benefit in practice from the material and financial support due to them under domestic law, in
order to meet their basic subsistence needs and, secondly, for showing indifference towards them.

The Court had to determine whether the applicants had been faced with a situation of extreme
material deprivation which could engage Article 3.

The applicants, who were single men in France, had found themselves in a situation of material
deprivation. In order to meet their basic needs, they relied entirely on the material and financial
support which was due to them under domestic law for as long as they were authorised to remain in
France as asylum-seekers. Under the French system in force at the time, unlawful migrants who
wished to seek asylum in France had to apply for an asylum-seeker’s residence permit. Article R 742-
1 of the Code on the Entry and Residence of Aliens and the Right of Asylum set a time-limit of 15
days, from the time the would-be asylum-seeker presented the requisite documents at the
Prefecture, for the authorities to register the asylum application and authorise the person to reside
legally. At the relevant time, in practice, this period averaged between 3 and 5 months, depending
on the Prefecture.

The Court noted that between the time when N.H. and K.T. had gone to the Prefecture to apply for
asylum and the date on which their asylum application was registered by the Prefecture, 95 days had
elapsed for N.H. and 131 days for K.T.; A.J. had been given an asylum-seeker’s provisional residence
permit 90 days after he had applied for asylum at the Prefecture; and, lastly, S.G. had obtained an
acknowledgement of his asylum application 28 days after his first appointment at the Prefecture.
N.H., K.T. and A.J. had thus argued that, during those periods, they had not been granted status as
asylum-seekers and that, consequently, they could not claim either accommodation or the
Temporary Allowance, remaining unlawful residents in France.

The Court found that, prior to the registration of their asylum applications, the applicants had not
been able to prove their status as asylum-seekers. For this reason, N.H. and A.J. had appealed to the
urgent applications judge of the Administrative Court to order the Prefect to examine their
applications for residence on the basis of asylum and to issue them with a provisional residence
permit. Those procedures had been unsuccessful. Moreover, the Court noted that under domestic
law, receipt of the Temporary Allowance was conditional on the presentation to the job centre of an
asylum-seeker’s residence permit and proof that the relevant application had been lodged with
OFPRA.

N.H., K.T. and A.J. stated that, as they had been unable to prove their status as asylum-seekers, they
had lived for 95 days, 131 days and 90 days, respectively, in fear of being arrested and deported to
their country of origin. The Court noted that, prior to obtaining an asylum-seeker’s residence permit,
they could indeed have been deported. Relying on the observations of the third-party interveners
and on official reports from the French authorities, the Court did not question the reality of those
applicants’ fears of deportation.

The Court noted that throughout the entire asylum procedure, which began with the applicants
being given a postal address by an association or with their first appointment at the Prefecture, they
had all been living rough, either under bridges in Paris or on the banks of a river (the Aude) in tents
lent by private individuals. Moreover, N.H. had never received the Temporary Allowance in spite of
the official steps he had taken. He had lived under the bridges of the Saint Martin Canal in an
extremely precarious situation from 26 March to 17 December 2013, i.e. for 262 days. A.J. had lived
on the street in similar conditions for 170 days, from 23 October 2014 to 14 April 2015. Despite A.J.’s
representations and appeals, he had been granted the Temporary Allowance only on 12 February
2015 and he had actually received the allowance from 5 March 2015 onwards. A.J. had therefore
remained without resources from 23 October 2014 to 5 March 2015, i.e. 133 days.

Lastly, the Court noted that S.G. and K.T. had lived for at least nine months on the banks of the
Aude, each in a single tent. K.T., who had no longer been an unlawful resident in France since 21
May 2013, had begun receiving the Temporary Allowance on 15 July 2013. From the time of his first
attendance at the Prefecture, K.T. had thus remained without resources for 185 days. S.G. had received the Temporary Allowance 63 days after his first attendance at the Prefecture. The Court
therefore noted that N.H. had lived rough without any financial resources and that K.T. and A.J.,
living in the same conditions, had only received the Temporary Allowance after delays of 185 and
133 days respectively.

The Court stressed that it was aware of the constant increase in the number of asylum-seekers since
2007 and of the gradual saturation of the National Reception Service. It noted that the facts of the
case were connected with that gradual development, without there being an exceptional
humanitarian emergency. It noted the efforts made by the French authorities to create additional
accommodation and to reduce the time taken to examine asylum applications. However, those
circumstances did not rule out the possibility that the situation of asylum-seekers might have
engaged Article 3 of the Convention.

The Court pointed out, first, that before their asylum applications had been registered, N.H., K.T. and
A.J. had been unable, as a result of delays, to justify their status as asylum-seekers for long periods.
N.H. had been granted subsidiary protection 229 days after his arrival in France; 188 days had
elapsed between A.J.’s first appointment at the Prefecture and the recognition of his refugee status
by OFPRA; and in the cases of S.G. and K.T., their asylum applications had been rejected by OFPRA
after periods of 448 and 472 days respectively.

The Court concluded that the French authorities had failed in their duties towards the applicants
under domestic law. They therefore had to be held responsible for the conditions in which the
applicants had been living for several months: sleeping rough, without access to sanitary facilities,
having no means of subsistence and constantly in fear of being attacked or robbed. The applicants
had thus been victims of degrading treatment, showing a lack of respect for their dignity. It had
aroused in them feelings of fear, anxiety and inferiority, likely to cause despair. The Court found that
such living conditions, combined with the lack of an appropriate response from the French
authorities and the fact that the domestic courts had systematically objected that the competent
bodies lacked resources for them in the light of their status as single young men, had exceeded the
threshold of severity for the purposes of Article 3 of the Convention. The three applicants N.H., K.T.
and A.J. had thus found themselves, through the fault of the French authorities, in a situation that
was incompatible with Article 3 of the Convention. There had thus been a violation of that Article.
With regard to the applicant S.G., the Court noted that he had obtained an acknowledgment of his
asylum application 28 days after his first appointment at the Prefecture and that – although he had
in fact been living in a tent – he had received the Temporary Allowance 63 days after that first
appointment. As difficult as this period must have been for him, he had at that point been provided
with the means to meet his basic needs. The Court therefore took the view that his conditions of
subsistence had not reached the threshold of severity required by Article 3 and that there had
therefore been no violation of Article 3 in respect of S.G.

Article 8 and Article 13 in conjunction with Article 8 (application no. 28820/13)

Having regard to the facts of the case, to the parties’ arguments and to the conclusions already
reached under Article 3, the Court found that there was no need to address these complaints
separately.

Just satisfaction (Article 41)

The Court held that France was to pay 10,000 euros (EUR) to N.H., EUR 10,000 to K.T. and EUR
12,000 to A.J. in respect of non-pecuniary damage, and EUR 2,396.80 to N.H. in respect of pecuniary
damage.


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