B. Procedures
6. Accelerated procedure
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.
6.1. 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:
149 ANAFE, Le dédale de l’asile à la frontière, December 2013.
150 General Controller of places of freedom deprivation, Activity Report 2013, 11 March 2014, available in French at: http://bit.ly/1FXNItl.
50 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.151 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.152
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.153 This period is reduced to 96 hours if the asylum seeker is held in administrative detention.154 There is no specific consequence if the Office does not comply with these time limits. In practice, before the reform of the law, some asylum seekers under the prioritised procedure waited for months before receiving the decision from OFPRA. In 2014, however, the average period for the examination of first asylum requests in prioritised procedure was 73 days.155 OFPRA explains this increase by the growing number of asylum claims processed under the prioritised procedure, and new objectives defined throughout the year 2014 sought to prioritise asylum claims from Syrians, Bangladeshi, Balkans third-country nationals and asylum seekers in Calais. The same situation might occur under the new law.
The prioritised procedure represented 33.4% of the total of asylum caseload in 2014. This is a 27%
increase in comparison to 2013. This increase is explained mainly by the placement of Georgia, Albania and Kosovo (until October 2014) on the list of safe countries of origin. The main countries of origin of asylum seekers placed under prioritised procedure were Albania, Sudan, Kosovo, Armenia and Georgia.156 Placement under a prioritised procedure often resulted from the use of the safe country of origin concept,157 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 (7.4% in 2014). However, the reform of the law on asylum has increased the number of grounds for channelling a claim under an accelerated procedure. Therefore, it remains to be seen how and for which grounds accelerated procedures will be used but there is a risk that they will be used more often than prioritised procedures.
151 Article L.723-3 Ceseda, as amended by the Law of 29 July 2015.
152 Ibid.
153 Article R723-3 Ceseda. Delays are even shorter (96 hours) for persons held in administrative detention centres and in waiting zone.
154 Article R723-4 Ceseda, as amended by the Decree of 21 September 2015.
155 OFPRA, 2014 Activity report, 10 April 2015.
156 Ibid.
157 In 2013, 33.6% of accelerated procedures related to safe country of origin grounds: OFPRA, 2013 Activity report, 28 April 2014.
51 6.2. Personal Interview
Indicators: Accelerated Procedure: Personal Interview Same as regular procedure
1. Is a personal interview of the asylum seeker in most cases conducted in practice in the
accelerated procedure? Yes No
If so, are questions limited to nationality, identity, travel route? Yes No
If so, are interpreters available in practice, for interviews? Yes No 2. Are interviews conducted through video conferencing? Frequently Rarely Never 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 accelerated procedure (excluding subsequent applications), 97.5% of the applicants were called for an interview in 2014.158
Video conferencing is mainly used for asylum applicants in overseas departments and for asylum seekers maintained in administrative detention centres (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.
6.3. Appeal
Indicators: Accelerated Procedure: Appeal Same as regular procedure
1. Does the law provide for an appeal against the decision in the accelerated procedure?
Yes No
If yes, is it Judicial Administrative
If yes, is it suspensive Yes No
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,159 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 new 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
158 OFPRA, 2014 Activity report, 10 April 2015.
159 UNHCR, Submission for the Compilation established by the OHCHR, Universal Periodic Review, French Report, July 2012.
52 application. Some Prefectures systematically ordered returns with compulsory removal orders from France, after
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.160 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. The practice of lawyer and potential case-laws on this specific element might provide further clarification in that respect.
6.4. Legal assistance
Indicators: Accelerated Procedure: Legal Assistance Same as regular procedure
1. Do asylum seekers have access to free legal assistance at first instance in practice?
Yes With difficulty No
Does free legal assistance cover: Representation in interview Legal advice
2. Do asylum seekers have access to free legal assistance on appeal against a negative decision
in practice? Yes With difficulty No
Does free legal assistance cover Representation in courts Legal advice
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.
160 Article L.723-2 VI Ceseda, as amended by the Law of 29 July 2015.
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