Cut-Price Justice at the French National Asylum Court

Guest post by Jessica Hambly. Jessica is a Postdoctoral Research Fellow on the ASYFAIR Project, led by Prof. Nick Gill at Exeter University, and funded by ERC Grant No. StG-2015_677917.

On Monday 16th April, a memorial, complete with chamber orchestra and choir, was held in the streets of Paris. The deceased? The right to asylum in France. A death notice had been placed in Libération by ELENA-France (French refugee lawyers’ association) announcing ‘(we) are sad to report the death of the right to asylum – killed by Macron and Collomb’s asylum law reform.’ Lawyers, dressed in their black robes, joined with activists, refugees, and others working on asylum to lament the passing of refugee rights in France. This, along with a bigger protest led by solidarity groups the day before, followed several months of strike action by various actors at the Cour Nationale du Droit d’Asile (French Asylum Court – ‘CNDA’) over the proposed asylum law reforms.

Located in the Eastern Parisian suburb of Montreuil, the CNDA is one of the key field sites for ASYFAIR – a multidisciplinary project examining issues of fairness and consistency across asylum appeals in different European states. However, since February 13^th, the court has functioned at a fraction of its normal tempo owing largely to the combined effect of strike action from court workers and refugee lawyers. The ‘Loi Collomb’ (after the government minister responsible for introducing the legislation) - for a ‘controlled immigration and an effective right to asylum’ (‘une immigration maîtrisée et un droit d’asile effectif’) - comes only a year after the last round of asylum legislation took effect. The 2015 reform already introduced a raft of measures, outlined below, aimed at streamlining and speeding up asylum procedures in France. One aim of ASYFAIR is to generate discussion around best practice in asylum appeals, but it would seem that some of the unique positive features of the French system, such as the use of judicial panels to make decisions, are rapidly being chipped away.

The CNDA examines appeals from people who have had their application for asylum rejected by the OFPRA (French Office for the Protection of Refugees and Stateless Persons). Operating under the highest French administrative court (the Conseil d’Etat, or Council of State), it is a jurisdiction devoted uniquely to the determination of protection claims. This contrasts with some other systems, such as the UK, where asylum appeals are dealt with alongside other immigration and nationality cases. The CNDA registered nearly 54,000 appeals in 2017, up from 39,986 in 2016, and delivered almost 48,000 decisions, but almost half of these were taken under ‘accelerated procedures’.

The previous reform (Law 2015-925 of 29 July 2015) introduced new accelerated procedures whereby, instead of being heard by a panel of three decision-makers (‘formation collégiale’) within a five month period from when the appeal was registered, appeals may be heard by a single judge within a five week period. The reform also increased possibilities of decisions being made by ‘ordonnance’, that is, by a single judge with no hearing. The use of a single judge to hear asylum appeals is standard in the UK, but increasing use of this practice in France is seen by refugee lawyers and other appeal participants as negatively impacting the quality of decision-making; three heads are better than one, they argue, particularly when such crucial issues are at stake. Since taking effect, already the number of decisions taken by a panel has reduced to less than 50%, and around a third of decisions are now taken by ordonnance. We may, then, question the meaning of ‘effective’ in this context: effective for whom? Arguably, far from making asylum procedures more effective for asylum seekers, the new asylum law further restricts the fundamental right to access asylum and not be returned to a place where at risk of persecution or ill-treatment.

Measures contained in the latest reform project include attempts to further compress the overall length of the asylum process, by: reducing the time people have to file their application from 120 to 90 days; reducing from one month to 15 days the time someone has to appeal against a negative decision; and again expanding the use of accelerated appeal procedures.  The tightening of time limits will make it even more difficult for people to access their right to claim asylum, and has been heavily criticised by human rights organisations. Whereas France has been repeatedly critiqued for detaining children and families, the reforms are silent on this issue and rather they increased the maximum length of administrative detention. Another aspect of the reform that will further undermine France’s obligations under international and human rights law, notably the right to an effective remedy, is the re-introduction of non-suspensive appeals for safe countries, meaning that a person may be removed from France before their appeal is determined. France was previously condemned in 2012 by the European Court of Human Rights for this practice, but the introduction of suspensive appeals in 2015 seems to have been short-lived. Further, serious questions over fairness in appeals are raised by the proposal for increased use of video-link appeals, even without consent of applicants, and restrictions over choice of language. Issues with interpretation already plague asylum processes in France and elsewhere, so making it even more difficult for a person to participate in their asylum process in a language they understand is an extremely worrying, retrograde step. 

It is particularly telling that the new law is vehemently opposed from all sides of the asylum process: judges, lawyers, rapporteurs (court officials who prepare an independent report on each asylum case), OFPRA, asylum applicants, solidarity groups, and academics. On the one hand, the ‘logique comptable’ (literally ‘accounting logic’), or ‘politique du chiffre’ (target culture), said to motivate these reforms, is seen as entirely out of place in asylum decision-making processes, which actually should be based on fairness and rule of law principles. The disturbing creep of performance target cultures in asylum adjudication can be seen across multiple jurisdictions, for example Home Office targets in the UK, quotas for immigration judges in the US, which represent a threat to fair and independent decision-making. On the other hand, efficiency per se is not an undesirable characteristic of an asylum system; people deserve to have their claim processed in a timely manner, as being kept in a state of limbo can itself causes extreme levels of suffering. But efficiency should not be at the expense of fairness. Efficiency could be tackled through better resource allocation, rather than truncating fundamental rights. Indeed, under the current law reform, increasingly complex procedures leading to onward challenges may actually have the effect of trapping more people in the system for longer, where they are neither ‘expulsable’ (removeable) nor eligible for status.

Ultimately, then, we may observe that the ‘effective right to asylum’, which the Loi Collomb purports to endorse, is little more than ‘au rabais’ (cut-price) window-dressing. Rather than taking time to evaluate the impact of the previous round of reforms, France is forging ahead with legislation that will significantly impede access to asylum and associated rights. Our ASYFAIR fieldwork at the CNDA comes at a pivotal time for this jurisdiction. While we may argue that the use of judicial panels, the work of independent rapporteurs, and the high rate of represented applicants in hearings are unique, positive, characteristics of the French system, the continued existence of these features is now under doubt as the pressure to decide cases more quickly and cheaply intensifies. This rapid succession of reforms over recent years suggests how France, like other states, may be engaged in a global ‘race to the bottom’, whereby ever-restrictive asylum procedures are employed as a questionable means – both in terms of legality and efficacy - of deterring people from seeking asylum. The strong resistance demonstrated by French asylum workers and activists is to be welcomed, as legal and humanitarian commitments to provide refuge to people at risk of persecution and ill-treatment are increasingly stripped back to minimal, cut-price, procedures.

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How to cite this blog post (Harvard style) 

Hambly, J. (2018) Cut-Price Justice at the French National Asylum Court. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/05/cut-price-justice (Accessed [date]).