Information Note on the Court’s case-law 253

July 2021

E.H. v. France - 39126/18

Judgment 22.7.2021 [Section V]

Article 3

Expulsion

Return to Morocco of a Moroccan national who is an activist for Western Sahara independence and thus belongs to a group that is particularly at risk, for failure to establish that he was at personal risk: no violation

Article 13

Effective remedy

Use of fou r effective remedies, with suspensive effect, to challenge the return of an asylum seeker, who was heard and, in spite of tight deadlines, enjoyed safeguards to put forward his claims: no violation

Facts – An asylum application by the applicant, a Moroccan national of Sahrawi origin and an activist for the Sahrawi cause, was rejected. The applicant challenged the order for his forcible return to Morocco and the effectiveness of the remedies available against that order

Law – Article 3

1. General situation i n Morocco – The situation at the time of the applicant’s removal to Morocco had not been such that any return of a Moroccan national to the country would have constituted a violation of Article 3.

This was the first case brought in relation to a return to Morocco where an applicant claimed to have been exposed to risks as a result of the fact that he was of Sahrawi origin and had been active in support of Western Saharan independence.

Moroccan nationals of Sahrawi origin who were activists for that cause could be regarded as being at particular risk. It followed that an assessment of the risk the applicant had faced at the time of his removal to Morocco had to be based on his individual situation, bearing in mind that persons belonging to a category at particular risk were more likely than others to attract the attention of the authorities. The protection afforded by Article 3 could only apply if the applicant was able to establish that there had been substantial grounds for believing that his return to Morocco exposed him personally to the risk of being subjected to treatment breaching that Article.

2. The applicant’s personal circumstances – Despite the fact that Moroccan nationals who were activists for Western Saharan independence were a group at particular risk, the Court, in the light of all the circumstances of the case, could only agree with the conclusion which the national authorities had reached in duly reasoned decisions, havin g regard both to the lack of specific evidence in the file substantiating the applicant’s alleged fears stemming from his involvement with the Sahrawi cause and the Moroccan authorities’ efforts to find and prosecute him before he left Morocco and after hi s forcible return, and also to the fact that he had not produced any documents or evidence before the Court besides those he had previously produced before the national authorities.

Accordingly, the evidence in the case file did not provide substantial gr ounds for believing that the applicant’s return to Morocco had placed him at real risk of treatment contrary to Article 3.

Conclusion : no violation (unanimously).

Article 13 read in conjunction with Article 3: Further to the Court’s findings of a violation of Article 13 taken together with Article 3 in Gebremedhin [Gaberamadhien] v. France and I.M. v. France , the necessary legislative amendments had been made. Thus, appeals against decisions refusing leave to en ter the country in order to claim asylum now had automatic suspensive effect. Furthermore, asylum applications lodged by aliens in administrative detention were no longer examined systematically under the fast-track procedure. In addition, the legislation applicable to the applicant’s situation, whether in the waiting zone or in the administrative detention centre, had been amended substantially.

1. Before the applicant’s removal to Morocco, while he was held in the waiting zone – During the period from 18 July 2018, when the applicant had been refused leave to enter French territory, and 28 July 2018, when he had entered the country de facto , the applicant had submitted an asylum application at the border, had been brought before the liberties and detention judge, had then appealed against the judge’s order to the Court of Appeal, had had an interview with an official from the French Office for the Protection of Refugees and Stateless Persons (OFPRA) who was responsible for issuing an opinion on whether the applicant’s asylum claim was manifestly ill-founded, and had applied to the Administrative Court to set aside the order refusing him leave to enter France to claim asylum; the court had rejected his application following a public hearing.

The applicant, wh o had arrived at a French airport on 18 July 2018, had been informed in Arabic of his rights and provided with the necessary information to be able to have access to the asylum procedure. His asylum application had been submitted on 19 July 2018.

Decisions refusing leave to enter France in order to claim asylum were taken by the Minister responsible for immigration after consulting the OFPRA, one of whose officials had to interview the alien concerned first, either in person or by videoconference. At that s tage, it was sufficient that the alien’s allegations of persecution should not be wholly improbable. In the applicant’s case, his interview on 20 July 2018 had lasted twenty-eight minutes and the replies he had given to the OFPRA official’s questions had b een particularly evasive, whether on the subject of his involvement with the Sahrawi cause, the persecution he claimed to have suffered as a result, the reasons for and circumstances of his departure from Morocco, or his fears in the event of a return to t hat country.

While the applicant alleged that the only language he knew was Hassaniya Arabic, there was no indication that he did not have a command of Arabic.

Moreover, having submitted an asylum application at the border, the applicant had had access to a remedy with automatic suspensive effect enabling him to take proceedings in the Administrative Court challenging the order of 20 July 2018 refusing him leave to enter the country in order to claim asylum, within forty-eight hours of that order being serv ed.

The Court did not underestimate the difficulties that might be faced by aliens claiming asylum who were being held in a waiting zone, stemming in particular from the fact that the Entry and Residence of Aliens and Right of Asylum Code (CESEDA) did not provide them with access to legal aid, unlike aliens who had been placed in an administrative detention centre. However, although the applicant had not been assisted by a lawyer or by one of the associations operating in the waiting zone, either before or during the interview of 20 July 2018 with the OFPRA official, a lawyer assigned by the legal aid office had assisted him in the proceedings before the Administrative Court. Furthermore, he had been able to give evidence at the hearing on 25 July 2018. Hen ce, he had been given a further opportunity to state the risks he would face if returned to Morocco and to produce evidence in support of his allegations. The Administrative Court had ruled on the applicant’s application by means of a duly reasoned decisio n, after hearing evidence from the applicant in person.

The possibility of keeping an alien in the waiting zone and refusing him leave to enter France if his asylum claim appeared manifestly ill-founded was intended to be compatible with the State’s obliga tion to ensure that there were no substantial grounds for believing that the alien’s removal would place him at real risk of treatment contrary to Article 3. At the same time, the Court had found that the holding of aliens in an international zone involved a restriction of liberty and should not be prolonged excessively. In the present case, under Article 13 in conjunction with Article 3, the Court concluded that the remedies available in such zones should satisfy particular requirements of promptness.

2. B efore the applicant’s removal to Morocco, while he was in the administrative detention centre between 29 July and 24 August 2018 – An order for an asylum seeker’s removal could only be executed on two conditions: if the OFPRA had refused to recognise the p erson’s refugee status and if the Administrative Court had dismissed applications to set aside the removal order and the decision extending the person’s administrative detention following the review it was required to perform from the standpoint of Article 3 when a complaint of that nature was brought before it.

On 29 July 2018 the prefect had issued the applicant with an order to leave French territory and had placed him in administrative detention. After the applicant had lodged his asylum application, an order had been issued on 2 August 2018 refusing him leave to remain as an asylum seeker. On 30 July 2018 and 6 August 2018 the applicant had lodged applications with the Administrative Court seeking the setting-aside of the removal order, the definition o f Morocco as the receiving country and the decision refusing him leave to remain as an asylum seeker. Those applications had been rejected in a single judgment of 13 August 2018. The applicant had also lodged an asylum application with the OFPRA on 2 Augus t 2018, which had been rejected on 9 August 2018.

On arrival at the administrative detention centre on 29 July 2018, the applicant had been informed in Arabic of his rights, and the same had occurred when he had submitted an asylum application on 2 August 2018. In an order of 2 August 2018 the prefect had refused him leave to remain as an asylum seeker on the grounds that his asylum application, submitted after he had been placed in the administrative detention centre, was to be regarded as having the sole purpose of stopping his removal. In that connection, the applicant had refused on several occasions to board a flight to Morocco, and had been able to make submissions before the OFPRA official and the Administrative Court regarding the risks he allegedly faced; those various factors had been duly taken into account by the prefect in his assessment of the applicant’s claim. The OFPRA had not availed itself of the opportunity to examine the applicant’s asylum application under the normal procedure. As the Co urt had previously held, it did not question the purpose and legitimacy of a fast-track procedure, alongside the standard procedure, for processing asylum applications for which there was every indication that they were ill-founded or an abuse of process.

Furthermore, the applicant had been assisted by the CIMADE, an association present at the administrative detention centre, in lodging his asylum application, and he had been assisted by a Hassaniya Arabic interpreter during his fifty-five-minute long inter view with a protection officer. The applicant had produced documents to the protection officer, who had asked him where they came from. In addition, in its decision of 9 August 2018, the OFPRA had relied on the applicant’s interview in concluding that his explanations had contained little in the way of personal detail, whether about the specific nature of his involvement with the Sahrawi cause and the threats he claimed to have suffered since 2011 as a result, that he had not provided any tangible evidence of his reasons for fleeing from Morocco and that the documents he had produced were irrelevant. Lastly, the applicant could not have been removed to Morocco, where he alleged that he would be at risk of treatment breaching Article 3, until the OFPRA had gi ven a decision on his asylum application. In the event, the OFPRA had given a decision on 9 August 2018 refusing to grant him refugee status.

The applicant, whose application to the Administrative Court to set aside the order of 29 July 2018 requiring him to leave French territory had had automatic suspensive effect, could not have been removed to Morocco until that court had ruled on his application, and the removal order could only be implemented, where appropriate, after the application had been rejected . Although the time-limit of forty-eight hours for lodging his application was short, the applicant had received legal assistance from the CIMADE in preparing his application and, under Article R. 776-26 of the Administrative Courts Code, he had had the op portunity, which he had used, to supplement his application up to the end of the Administrative Court hearing on 13 August 2018. Furthermore, the applicant had produced documents before the Administrative Court and had not produced any other documents befo re the Court besides those already submitted to the Administrative Court judge. Lastly, the applicant had once again been heard in person. At the hearing before the Administrative Court, which had examined all the appeals lodged against the removal order a nd against the decision extending the applicant’s administrative detention and refusing him leave to remain as an asylum seeker, the applicant had been assisted by an interpreter and by a legal aid lawyer appointed to put forward his case. Both appeals had been dismissed in a judgment of 13 August 2018 which had become final.

3. Decision by the OFPRA rejecting the applicant’s asylum application, examined by the National Asylum Court (CNDA) after the applicant’s forcible removal to Morocco on 24 August 201 – After the applicant had been forcibly removed by the French authorities, the CNDA had found that no risks had been established and dismissed the appeal against the OFPRA’s decision. While it was regrettable that the CNDA had considered itself bound to dra w inferences from the fact that the applicant was not present at the hearing, the fact remained that the applicant had not produced any new information, either in those proceedings or before the Court, regarding the risks he allegedly faced. Lastly, in vie w of the circumstances of the case and in particular all the safeguards afforded to the applicant and the remedies with suspensive effect of which he had availed himself before his forcible removal to Morocco, the fact that the remedy he had used before th e CNDA did not have suspensive effect had not infringed his right to an effective remedy.

In conclusion, the applicant had been able on four occasions to make use of remedies which had suspended the enforcement of the order for his removal to Morocco. In the context of those different remedies he had given evidence four times and had had the opportunity, despite the short deadlines that were characteristic of such proceedings, to present his claims in an effective manner as a result of the safeguards affor ded to him in practice (assistance of an interpreter, support from an approved association, appointment of a legal aid lawyer).

The remedies used by the applicant, taken together, had been effective in the particular circumstances of the case.

Conclusion : no violation (unanimously).

(See Gebremedhin [Gaberamadhien] v. France , 25389/05, 26 April 2007, Legal summary , and I.M. v. France , 9152/09, 2 February 2012, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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