AI, R (On the Application Of) v The Secretary of State for the Home Department [2015] EWHC 244 (Admin)

[2015] EWHC 244 (Admin)

Case No CO/7627/2012

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 09/02/2015

Before

MS D GILL (SITTING AS A DEPUTY HIGH COURT JUDGE)

Between

The Queen (on the application of AI)Claimant

The Secretary of State for the Home DepartmentDefendant

Raza Husain QC, Chris Butler and Raza Halim (instructed by Duncan Lewis) for Claimant

David Manknell (instructed by The Treasury Solicitors) for Defendant

Hearing Hearing dates: 13 th and 14 th November 2014

Judgment

INDEX:

paras

I.Introduction, grounds and remedies sought 1-7

II.Background facts 8-10

III.The Procedure for claiming asylum in France

and challenges to adverse decisions 11-44

IV.“Official Bulletin of the Ministry of the Interior”

and letters from the UNHCR 45-50

V.The Dublin Regulation and the Reception,

Qualification and Procedures Directives 51-56

VI.The EU Charter 57

VII.Ground 1: Discussion of the relevant legal issues

[1]The claimant claims to be a non-Arab Darfuri (of Tunjur ethnic origin) national of Sudan. He travelled to the United Kingdom via France where he claimed asylum. His asylum claim was refused. He arrived in the United Kingdom in 2012 and claimed asylum on 1 June 2012. Since his arrival in the United Kingdom, he has obtained an expert report from Mr. Peter Verney dated 2 May 2014.

[2]The claimant's judicial review claim now stands as a challenge to the decision of the defendant of 30 June 2014 which replaced earlier decisions made on 10 July 2012, 8 August 2012, 1 October 2012 and 8 January 2013 to remove him to France as a safe third country without considering his asylum claim. France has accepted responsibility for considering his asylum claim under Council Regulation (EC) No. 343/2003 (the “Dublin II Regulation”).

[3]The defendant has also issued a certificate under para 5(1) of Part 2 of Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (the “2004 Act”) that it was proposed to remove the claimant to France and that, in her opinion, the claimant is not a national or citizen of France. She further certified the claimant's human rights claim as clearly unfounded under para 5(4) of Part 2 of Schedule 3.

[4]As France is a state listed in Part 2 of Schedule 3 of the 2004 Act, para 3(2) of Part 2 of Schedule 3 provides that it “shall be treated” as a place: i) where the claimant’s life and liberty will not be threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion; ii) from which the claimant will not be sent to another State in contravention of his rights under the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (the “ECHR”); and iii) from which the claimant will not be sent to another State otherwise than in accordance with the Geneva Convention relating to the Status of Refugees of 28 July 1951 as supplemented by the New York Protocol of 31 January 1967 (the “Refugee Convention”). Paras 3(2)-(5) are set out at Annex A, for convenience.

[5]The claimant seeks to challenge his removal to France. He has not sought a declaration of incompatibility. This is because he does not rely upon

Article 3 of the ECHR

. Instead, he relies upon rights provided for in the Charter of Fundamental Rights of the European Union (2010/C 83/02) (the “EU Charter”), that is, the right of asylum (Article 18), the right not to be subjected to torture or inhuman or degrading treatment or punishment (Articles 4 and 19.2) and the right to an effective remedy (Article 47). These Articles are also set out at Annex A for convenience.

[6]Ground 1: i) If removed to France, the claimant is at real risk (or arguably at real risk, depending on the correct test to be applied, see [75]-[83] below) of refoulement to Sudan where he will be exposed to persecution contrary to his right to asylum under Article 18 of the EU Charter or torture or inhuman or degrading treatment or punishment contrary to his rights under Articles 4 and 19.2 of the EU Charter. This is because: a) If removed to France, he will be detained and have applied to him the “detained priority procedure” applicable in France. The manner in which his previous asylum claim was handled in France was unfair. b) The examination of second and further asylum claims are known as “formal re-examinations” in France. If the claimant makes a new asylum claim after removal to France, his claim would not be re-examined in a manner which would remedy the previous unfairness. c) Applicants applying for asylum for the first time in the detained priority procedure have 0.6% chance of success. The claimant will have nearly no chance at all of being granted asylum in a re-examination. ii) In assessing whether the claimant is at real risk (or arguably at real risk, depending on the correct test to be applied) of refoulement to Sudan, at one remove, it is contended (in summary) as follows: a) The irrebuttable presumption in para 3(2) of Part 2 of Schedule 3 of the 2004 Act must be disapplied in every Dublin removal case in which the claimant relies upon rights under the EU Charter. b) The Court should assess the strength of the substantive asylum case. The stronger the likelihood that the claimant is a member of the Tunjur tribe, the lower the threshold at which procedural deficiencies in the French system will give rise to a real risk of refoulement. c) The Court should disregard the possibility that, if his asylum claim is refused in France, the claimant may make an application to the European Court of Human Rights (ECtHR) under rule 39 of its Rules of Court for an interim protective order preventing his removal to Sudan until after it has considered his case on the merits. A rule 39 application “is no answer”. d) The Court should apply the principle in R v. Secretary of State for the Home Department ex parte Adan, R v. Secretary of State for the Home Department, ex parte Aitseguer

[2000] UKHL 67

[2001] 2 WLR 143

to the effect that there is only one true autonomous interpretation of the definition of a refugee under Article 1A(2) of the Refugee Convention. In the instant case, it is said that the United Kingdom recognises as refugees all Sudanese nationals who are non-Arab Darfuris, whereas France only recognises as refugees Sudanese nationals who belong to a non-Arab Darfuri tribe if they have actually originated from Darfur and if there is no viable internal flight option (no expert evidence to this effect has been produced). iii) There would be a breach of the claimant’s right to an effective remedy (Article 47 of the EU Charter) taken together with his right not to be subjected to torture or inhuman or degrading treatment or punishment (Articles 4 and 19.2 of the EU Charter). Ground 2: The defendant has unlawfully failed to investigate the fairness of the procedures in France. In reliance upon R v Secretary of State for the Home Department, ex parte Gashi [1999] Imm AR 415 (per Buxton LJ), it is said that the duty of enquiry arises because the claimant has produced material that calls for an explanation, in that:(i) he has produced statistics which show that the success rate for asylum seekers in the detained priority procedure in France is 0.6% and even lower in the case of re-examinations, compared with 100% success rate in the United Kingdom in the case of Sudanese nationals of non-Arab Darfuri origin; and

(ii) he has produced evidence which shows that the detained priority procedure in France is inherently unfair.

[7]The remedies sought (amended grounds dated 13 August 2014) are:(i) that the decision of 20 June 2014 be quashed;

(ii) a declaration that the claimant’s removal to France is unlawful (although there is no suggestion, in terms, that the defendant’s failure to exercise her discretion under Article 3(2) of the Dublin II Regulation is unlawful). In the claimant's skeleton argument, the remedies sought are that the defendant’s decision should be quashed and/or that the Court should declare that there is a real risk of refoulement and a breach of the claimant's rights under

Article 3 of the ECHR

and cognate rights under the EU Charter.

II. Background facts

[8]The basis of the claimant's asylum claim was that he was a member of the Tunjur tribe and was a non-Arab Darfuri. He claimed to have been held in detention by the Sudanese authorities twice on suspicion of supporting Western Darfur rebels, the first time in 2005 for one year and the second time two years later for a period of two years. According to his witness statement, he left Sudan some time in 2008 and travelled to Libya, Greece and Italy before entering France illegally at the end of December 2011 (judgment of the Administrative Court judge dated 21 March 2012, on C209). Elsewhere, it is said that he arrived in France in early January or February 2012, and that he stayed in squats in Calais for about a month in a derelict building due for demolition.

[9]Pulling together the information in the various witness statements and the translations of the documents from the French courts in the claimant's case, the chronology of events in France may be summarised as follows (there is some lack of correlation in relation to some of the dates): i) On 9 February 2012, the claimant was encountered by French police in Calais and taken into custody. ii) An expulsion order was issued by the Préfet of Pas-de-Calais on 10 February 2012 which the claimant challenged to the Administrative Court judge, whose decision was delivered on 21 March 2012 (see below). This appeal was suspensive because all appeals against expulsion orders are suspensive. iii) On 15 February 2012, the claimant “expressed his wish to make an asylum application” by handing an application to the head of the detention centre where he was held. iv) On 16 February 2012, he was refused provisional residence authorisation and his request for asylum recorded under the “priority procedure” by the Préfet of the Nord Department. As he was in detention, the timescales for those in the detained priority procedure (see below) applied. The claimant’s appeal to the Administrative Court judge included an application for the suspension of this decision. v) On 21 February 2012, the claimant lodged his asylum claim, it appears without legal assistance. vi) On 28 February 2012, the claimant was interviewed about his asylum claim by Office Français de protection des Réfugiés et Apatrides (theFrench Office for the Protection of Refugees and Stateless Persons, “OFPRA”, see below). vii) On 2 March 2012, the claimant's asylum claim was refused by OFPRA. According to the statement of Ms. Emeline Lachal, the advocate who represented the claimant before the Administrative Court judge on 21 March 2012 (C166, [11]-[12]) and who said she inspected the claimant's file with OFPRA, a primary reason for OFPRA’s refusal was the lack of documentation to verify the claimant’s country of origin and ethnicity. viii) On 14 March 2012, the claimant filed an appeal against the refusal of his asylum application by OFPRA to the Cour Nationale Du Droit d’Asile (“CNDA”) whichis an Administrative Court. [This appeal was non-suspensive because the claimant had been refused temporary residence as an asylum seeker.] ix) On 15 March 2012, the claimant made an application by fax to the ECtHR for an indication under rule 39. This application was refused the next day without any reasons, although he was informed of the possibility of informing the Court that he wished to maintain his request. x) On 21 March 2012, the Administrative Court judge delivered his decision on the claimant's challenges. According to the judgment at C208-211 and the statement of Ms. Lachal (C165, [6]), the claimant had challenged the following:(i) the decision of 16 February 2012 to refuse him temporary residence as an asylum seeker;

(ii) the expulsion order of 10 February 2012; and

(iii) the decision to place him within the priority procedure, as opposed to the “normal asylum procedure” (see below). The claimant's challenges to these decisions were rejected. In summary, the judge said that it was apparent from the investigation that the claimant had entered France illegally, according to his declarations, at the end of December 2011; he was questioned on 9 February 2012 and did not state his intention of requesting asylum, giving a false identity, until 15 February 2012, after he had been informed of the expulsion order. In those circumstances, by refusing to admit the claimant as a temporary resident, the Préfet “did not seriously and obviously infringe the requirements imposed as to respect for the right to asylum”. The judge rejected the claimant’s assertion that his right to an effective remedy before a court was infringed simply because the appeal to the CNDA was not suspensive in nature, the judge having observed that the claimant would be able to appeal to the CNDA before which court he could present his arguments and be represented by a legal adviser. Ms. Lachal said that she was introduced to the claimant two days before the hearing and that she first met him 30 minutes before the hearing (C165, [4]). Ms Lachal said (C166, [11]) that the fact that the claimant had applied for asylum after the expulsion order was issued “ensured” that the Administrative Court judge deemed his asylum claim to be fraudulent. She said that the Administrative Court judge did not consider the prejudicial impact that these procedural shortcomings would have had upon the claimant’s asylum application. xi) On 23 March 2012, the claimant was released from detention. According to the statement of Ms. Cathy Vasseur of France Terre d’Asile (C202), he was released on the 43rd day of his detention because travel documents had not been obtained from the Sudanese Embassy (C202). Alternatively, he was released on the 45th day of his detention because he had reached the maximum period for such a detentions under French regulations (statement of Ms. Rosie Potter at C207). It appears that, the claimant had previously been taken to the Sudanese Embassy for travel documents to be obtained. The claimant left France and claimed asylum in Birmingham. xii) On 12 July 2012, the claimant's non-suspensive appeal was heard before the CNDA. The claimant was not present at the hearing but representations were made on his behalf by legal counsel. The judge rejected his appeal (a translation of the judgment appears at C212-C217). The judge recorded the claimant’s complaint that he had not been allowed sufficient time to develop his case at his interview with the protection officer of OFPRA; that the decision of OFPRA’s managing director was not translated into Arabic, the only language he understands; and that he was not sent either the report that was produced during his interview with the protection officer or the analysis produced by that officer. The judge recorded the basis of the claimant’s claim to fear persecution in Sudan. The judge considered that the claimant’s arguments that he had not had enough time during his interview with the OFPRA protection officer and that he had not been given the interview record and the decision of the protection officer in a language he could understand, were “inoperative” because it was the duty of the court to issue its own decision on the right of the claimant to asylum on the date of its own decision. The judge went on to consider the basis of the claimant’s application for asylum. He said that the claimant had not produced any documents capable of establishing his identity and his nationality; his explanations for being unable to contact any member of his family likely to send him any such documents “not having been at all convincing”; his declarations as to his origin and his nationality, which were all that the court had, were not sufficient in that “his words appeared vague about the region where he had allegedly lived for more than twenty years, he seemed ill-informed about the conflict affecting that region since 2003 and, in any event, his words did not reflect a daily and personal experience; the account of the persecutions listed[was]not helpful either in removing the doubts arising about his origin, his career and his nationality, nor[did]they support the facts alleged as having been established, their chronology not emerging clearly from his statements which[were]fluctuating on that point, the arrests and detentions referred to having been reported with few personal details, the reasons why he had been personally assimilated with the rebellion not appearing clearly and the circumstance derived from the fact that he could have remained in Darfur until 2009 whereas in 2003 he had allegedly evaded the monitoring obligations seeming rather unlikely; that because it had not been possible to determine his origin and itinerary,[the claimant]could not usefully invoke … subsidiary protection…; that meanwhile, the simple fact that [the claimant] allegedly belongs to the Tunjur tribe would not be sufficient, supposing it were established, to certify his alleged regional origin, large communities also being present these days in the territories of other Sudanese regions; so, in those circumstances, the court was not able to conclude on the merits of the fears expressed regarding the country of which [the claimant maintained he was] a citizen.”

[10]In his report prepared on 2 May 2014 (C170-189), Mr Peter Verney said, inter alia, that the claimant had given an account which was consistent with his claim that he is of Tunjur ethnic origin; that his Darfuri accent was quite strong and that, whilst it was impossible to prove absolutely that he was from the Tunjur tribe, the claimant had given so many positive indicators in terms of his specialised local knowledge that that was the most likely conclusion.

III. The procedure for claiming asylum in France and challenges to adverse decisions

[11]There are four categories of sources for the evidence as to the procedure for claiming asylum and challenging adverse decisions in France, as follows: i) English translations (prepared, on the instruction of the claimant’s solicitors, by a firm registered in the United Kingdom) of the judgments of the ECtHR in I.M. v France (9152/09, 2 February 2012) and M.V. and M.T. v France (17897/09), 4 September 2014). ii) Evidence from the claimant and individuals who worked with non-governmental organisations (“NGOs”) in France and who had assisted the claimant at various stages during his previous stay in France. As I will have to deal with this evidence in assessing the risk of refoulement, it is convenient to list them here, as follows: a) A witness statement dated 23 October 2012 from the claimant (C197-201); b) A statement dated 18 July 2012 from Miss Rosie Potter, a volunteer with the Calais Migrant Solidarity (C206-207); c) A statement dated 4 September 2012 from Ms Cathy Vasseur of France Terre d’Asile (C202-203). d) An email dated 19 November 2012 from Ms. Nadia Sebtaoui of France Terre d’Asile (C196); e) A statement dated 2 June 2014 from Ms. Emeline Lachal, an advocate lawyer in France within the region of Lille (C164-167); f) A joint statement (the “joint statement”) dated 4 June 2014 from Ms. Lucie Feutrier-Cook of l’Ordre de Malte and Mr. Radoslaw J Ficek of France Terre d’Asile (CC159-163); and g) A second statement from Mr. Ficek dated 7 November 2014 (C227-C229). iii) Translations of various French court and other official documents relating to the claimant's previous asylum claim. iv) Two letters from the Office of the United Nations High Commissioner for Refugees (the “UNHCR”), the first is dated 13 May 2014 (C168-169) and the second is dated 18 September 2014 (C158).

[12]Mr Manknell took issue with the admissibility of the documents listed at [11(ii)] above to the extent that they cover matters that ought to have been made the subject of expert evidence and an application made under Part 35 of the CPR to adduce expert evidence. I should make clear that the information set out at [14]-[44] is drawn largely from I.M. v France and in part from the letters from the UNHCR, the court documents and the “Bulletin”, as to which there can be no proper objection on the ground of admissibility. Any information in square brackets is taken from the statements of the NGOs described above, concerning which Mr Manknell objects. However, the information I have extracted from their statements in this section III of my judgment does not disadvantage the defendant.

[13]Paragraph numbers given at [14]-[44] refer to the judgment in I.M. v France unless otherwise stated.

(a) Terminology and acronyms:

[14]I will first explain the following terminology and acronyms: CESEDA This is the Code on the entry and residence of foreigners and the right of asylum. CESEDA provides for the grant of international protection with reference to the terms of the Refugee Convention ([39]). OFPRA Office Français de protection des Réfugiés et Apatrides, i.e. theFrench Office for the Protection of Refugees and Stateless Persons. OFPRA is the authority competent in France to acknowledge the status of refugee and grant subsidiary protection (Articles L. 713-1 and L. 721-2 of CESEDA) ([40]). It is responsible for examining asylum applications. This duty is carried out by officers of protection ([41]). (It is the equivalent of the U.K. Border Agency or U.K. Visas and Immigration in the United Kingdom). CNDA Any decision by OFPRA refusing an asylum application may be appealed to Cour Nationale Du Droit d’Asile. The CNDA is an Administrative Court under the authority of a President, a member of the Conseil d’Etat appointed by the Vice-President of the Conseil d’Etat (Article L. 731-1 of CESEDA). A petitioner may present explanations to the CNDA and be assisted by Counsel and an interpreter (Article L. 733-1 of CESEDA) ([41]). Whether an appeal to CNDA is suspensive or non-suspensive depends on whether the individual was granted temporary residence as an asylum seeker (as to which, see below). Conseil d’Etat An adverse decision by CNDA may be appealed on points of law to the Conseil d’Etat. Appeals to the Conseil d’Etat are non-suspensive ([62]). APRF French acronym for “order for return to the border”. This is an expulsion order. No expulsion measure may be enforced against an individual until OFPRA has rejected his asylum claim (Article L. 742-6 of CESEDA) ([57]). All expulsion orders may be appealed (see below). Appeals against expulsion orders are suspensive (see below) ([67]). Priority procedure: The purpose of the priority procedure is to ensure examination on the merits of the asylum application and to obtain a rapid decision (Article L. 741-4 of CESEDA). The priority procedure is characterised by two features:(i) the asylum application is examined within tight deadlines; and

(ii) a negative decision by OFPRA on the asylum application attracts a non-suspensive right of appeal to CNDA ([49]). Detained priority procedure: Not all those who are in the priority procedure are detained. If an individual who is in the priority procedure is also in administrative detention, the timescale within which OFPRA must reach a decision is reduced from 15 days to 96 hours, as to which see my para [44] below. The maximum period of detention was 32 days at the relevant time in I.M. v France ([111]). [It is now 45 days, according to Ms. Potter’s statement].(The detained priority procedure is the equivalent of the detained fast track procedure in the United Kingdom for the consideration of asylum applications). Normal procedure: This term is used to refer to the procedure applied for asylum claims made and examined outside the priority procedure ([49]). [An individual whose claim is handled under the normal procedure may be detained, according to the statement of Ms Lachal, C165, at [6]].

(b) Temporary residence permits: Admission to residency

[15]Any foreigner on French territory who is not entitled to reside there and who wishes to make an application for asylum must first seek temporary residence as an asylum seeker (Article L. 741-1 of CESEDA). An application for temporary residence as an asylum seeker is made to the Prefecture. The applicant must report in person and lodge the application as well as prove “domiciliation” (it is not clear whetherthis means address or domicile). When the application is filed, the Prefecture will take fingerprints in order to determine whether France is the responsible state for considering the asylum application under the Dublin Regulations ([42]).

[16]The grounds upon which an application for temporary residence as an asylum seeker may be refused are limited to the following four grounds (Article L. 741-4 of CESEDA) ([45]): i) Where examination of the asylum application indicates that another Member State is responsible for examining the application. ii) Where the foreigner seeking asylum has the nationality of a country for which the provisions of Article 1(5)(C) of the Refugee Convention is invoked or a country considered as a safe country of origin. iii) Where the presence of the foreigner in France constitutes a grave threat to the public order, public safety or the security of the state. iv) The application for asylum is based on intentional fraud or constitutes an abusive appeal against the asylum procedures or is presented exclusively for the purpose of vitiating an imminent or pronounced expulsion order. The judgment in I.M. v France states that, according to practice, an application is considered as based on intentional fraud or as an abusive appeal if, for example, the applicant lodges several asylum applications under different identities or makes an application when notified of expulsion measures or police investigations, even if he has been in France for some time ([46]).

[17]If a foreigner’s application for temporary residence as an asylum seeker is granted, his asylum application will be dealt with under the normal procedure ([44]).

[18]Any foreigner who has been refused temporary residence as an asylum seeker may still apply to OFPRA for asylum but the priority procedure will be applied to him (Articles L. 723-1 and L. 742-5 of CESEDA) ([47]).

[19]It is possible to challenge a decision of the Prefecture to place an applicant in the priority procedure and ask for re-allocation of the matter to the normal procedure [statement of Ms Lachal, C165, at [6]].

[20]The formalities for making an asylum application are the same for both. These are explained below in the next section.

(c) The formalities for making an asylum application

[21]The formalities for making the asylum application are as follows: i) The application must be prepared in the French language on a form provided by OFPRA ([51]). The applicant is not entitled to the free assistance of an interpreter to lodge the asylum application. He must bear the cost of any translation service he obtains (the administration makes an interpreter available to foreigners for non-admission or expulsion procedures only) ([52]). ii) The application form must be signed and accompanied by two recent identity photographs and, if applicable, the travel document and a copy of the residence permit document in force ([51]). iii) The OFPRA form is only complete if the applicant’s fingerprints have been taken at the Prefecture ([43]). (d) Examination of asylum applications by OFPRA (normal procedure and priority procedure)

[22]Examination of the application by OFPRA in the priority procedure is identical to that conducted for the normal procedure: OFPRA pronounces a decision after a single investigation during which the asylum seeker can present evidence in support of the application and in principle be heard (Articles L. 723-2 and L 723-3 of CESEDA). When the asylum seeker requires the assistance of an interpreter at the hearing, the latter is paid by the State ([55]).

[23]Examinations of asylum applications are carried out by officers of protection. The process frequently includes hearing the petitioner. Those cases in which OFPRA may dispense with a hearing are limited by law (Article L.723-3 of CESEDA) ([41]).

[24]The hearing before OFPRA is the subject of a written report which, in addition to the reasons justifying asylum, include information on the petitioner. If refugee status is refused, a copy of the report is sent to the interested parties with the decision (Article R. 723-1-1 of CESEDA) ([41]).

[25]If OFPRA grants entitlement to international protection, any order on removal to the border which may have been pronounced is abrogated and the petitioner is granted a residence permit authorising residence in France ([41]).

[26]No expulsion measures may be enforced before a decision is made by OFPRA (Article L. 742-6 of CESEDA) ([41]).

(e) Appeals to CNDA and appeals against decisions by CNDA

[27]An adverse decision by OFPRA on an asylum application may be appealed to CNDA within one month of notification of the decision whether the normal procedure or the priority procedure was applied ([41] and ([58]). The procedure before CNDA is the same for both. Interested parties may present their explanations and be assisted by Counsel and an interpreter (Article L. 733-1 of CESEDA) ([41]).

[28]However, an appeal to CNDA suspends other measures if the normal procedure was applied but not if the priority procedure was applied ([49] and [58]). In consequence, if OFPRA rejects an asylum application in the priority procedure, an expulsion order that has been issued may be enforced once OFPRA’s negative decision has been pronounced ([58]) (unless there is an extant appeal to the President of the Administrative Court against the expulsion order or the destination specified in the expulsion order, as to which see the section under “APRF/Expulsion orders” below).

[29]If a foreigner is deported to his country of origin before the hearing before the CNDA takes place, the CNDA interrupts investigation of the appeal. The CNDA considers that the appeal must be regarded as temporarily without purpose (even in the case of involuntary return to the country of origin by an individual who has not renounced his asylum application) and that it is the responsibility of the foreigner if he returns to France to approach the CNDA for a decision on his appeal. The CNDA will pronounce: “No case to answer” in the event of enforcement of the removal measure ([59]).

[30]In relation to both the normal procedure and the priority procedure, any appeal to the Conseil d’Etat against any adverse decision by CNDA must be made within two months. An appeal lies only on points of law and is non-suspensive ([62]).

(f) APRF / Expulsion orders

[31]If the application for temporary residence as an asylum seeker is refused, the individual may make an asylum application to OFPRA which will be dealt with under the priority procedure and which is explained above.

[32]Whether or not the individual makes an application for asylum to OFPRA, a foreigner without any right of residence in France may be the subject of an APRF/expulsion order. Pending enforcement of the expulsion order, he may be placed under house arrest or in administrative detention in one of the centres provided for such purpose ([48]).

[33]If an APRF/expulsion order is issued, the foreigner may, within 48 hours of notification of the order, seek its cancellation before the President of the Administrative Court (Article L. 512-2 of CESEDA) ([67]). Upon notification, he must promptly be permitted to notify his counsel, his consulate or a person of his choice (Article L. 512-1-1 of CESEDA) ([65]). The foreigner is entitled to request the President to appoint an interpreter. When entering the petition, the clerk must inform him of his right to make such a request (Article R. 776-23 of the Code of Administrative Justice) ([66]). He is also entitled to legal assistance through one or more of the NGOs present in the detention centre. If the foreigner is placed in administrative detention, he is notified of his rights ([66]).

[34]An appeal to the Administrative Court for cancellation of an expulsion order suspends enforcement of the deportation measure, without preventing the foreigner remaining in administrative detention. The foreigner may not be deported before expiry of the appeal deadline and, if the judge is seized of an appeal, before the court has pronounced its decision (Article L. 512-3 of CESEDA). The decision determining the country of return constitutes a separate decision from the deportation measure proper. If it is challenged at the same time as the APRF, the appeal stays other proceedings (Article L. 513-3 of CESEDA) ([67]).

[35]The Administrative Court judge addresses the legality of the challenged act. He may cancel the order for external legal reasons (lack of jurisdiction, procedural error), or internal (for example, error of law or in the legal description of the facts). He must consider the proportionality of the right to fundamental freedoms invoked by the foreigner and the requirements of public order ([68]).

[36]When seized of a challenge seeking cancellation of the decision determining the country of return, the judge carries out an assessment under

Article 3 of the ECHR

. He may cancel the decision determining the country of deportation when it is established that this would expose the asylum seeker to ill-treatment contrary to

Article 3 of the ECHR

, whether from state or non-state agents. He also reviews the proportionality of the damage to the private or family life of the foreigner, guaranteed by

Article 8 of the ECHR

, and the purposes pursued by the measure ([68]).

[37]The Administrative Court sits with a single judge ([70]). The procedure provides for a hearing. During this hearing, in contrast to the normal rules in administrative disputes, new grounds may be invoked, even if they have not been previously stated in writing. The hearing is public. It is held without a public rapporteur in the presence of the appellant, unless he fails to appear and the hearing has been duly convened. The appellant is assisted by Counsel, if applicable. He may request assignment of the duty lawyer. He may request the assistance of an interpreter and the communication of his case file (Article L. 512-2 of CESEDA) ([71]). The Administrative Court judge has 72 hours to adjudicate ([72]).

[38]The judgment pronounced by the Administrative Court may be appealed within one month before the President of the territorially competent Administrative Appeal Court or the entity delegated by the latter. This appeal does not stay other proceedings (Article R. 776-16 of the Code of Administrative Justice).

[39]According to the letter from the UNHCR dated 18 September 2014, expulsion orders are valid for one year. If an expulsion order against an individual has expired, a Préfet may issue a new one. (g) The normal procedure and the priority procedure: similarities and differences

[40]It is important to note that whether a person is allocated to the normal procedure or the priority procedure turns upon the outcome of their application for temporary residence as an asylum seeker which itself turns upon the four grounds listed at [16] above. These four grounds include that the asylum application is based on intentional fraud or is abusive or made solely to frustrate removal pursuant “to an imminent or pronounced expulsion order”. As I said at [16] above, the judgment in I.M. v France states that it was the practice that, if an asylum application was made after the individual had been notified of an expulsion order or the police had begun their investigations, the application was considered to be based on intentional fraud or as an abusive appeal and therefore allocated to the priority procedure on that basis.

[41]It is also important to note that no foreigner may be removed from France without an expulsion order; that all expulsion orders (whether the normal procedure or the priority procedure has been applied) carry a right of appeal to an Administrative Court judge who is obliged to consider

Article 3 of the ECHR

; and that all such appeals (whether the normal procedure or the priority procedure has been applied) are suspensive. Accordingly, all asylum seekers in France (whether the normal procedure or the priority procedure has been applied) have at least one suspensive right of appeal in which they may raise

Article 3 of the ECHR

[42]The State's responsibility for providing interpreters to assist asylum seekers is the same, whether under the normal procedure or the priority procedure. Interpreters are provided at State expense, and upon request, for the interview with OFPRA and at the hearings of appeals against expulsion orders before the Administrative Court judge and appeals against refusal decisions by OFPRA to the CNDA. The State is not obliged to provide interpreters to assist an asylum seeker to make an asylum application or lodge an appeal to the Administrative court judge or the CNDA, whether the individual is in the normal procedure or the priority procedure. However, if a person is in detention (not all those allocated to the priority procedure are in detention and it appears from Ms Lachal’s statement at [6] that individuals in the normal procedure may also be detained), there may be the following practical differences: i) Given that an OFPRA document is only complete if the applicant’s fingerprints have been taken at thePrefecture, a detainee will need permission to attend the Prefecture. However, the grant of such permission depends upon the detainee’s conduct and, above all, his ability to provide a legal address or finance the travel costs incurred (Article D 147 of the Code of Criminal Procedure) ([43]). ii) The fact that asylum applications must be made in the French language and that the State is not obliged to provide interpreters at State expense obviously poses a problem for asylum seekers who cannot write in French. The judgment in I.M. v France records (at [53]) that, in order to allow effective exercise of the rights of foreigners in administrative detention centres, the Minister with responsibility for asylum affairs has an agreement with one or more corporate entities with the mission of informing foreigners and assisting them to exercise their rights. Foreigners in detention benefit from services provided in each centre by such associations. Since 2010, the following five associations have been active in French administrative detention centres: Comité Inter Mouvementes Auprès des Evacués (CIMADE); l’Ordre de Malte; l’Association Service Social Familial Migrants (ASSFAM); France Terre d’Asile; and Forum des Réfugiés ([53]).

[43]There are two ways in which the normal procedure and the priority procedure differ ([49]). The first difference is that those whose asylum claims are examined under the normal procedure have a suspensive right of appeal against refusal of asylum by OFPRA, i.e. the right of appeal to CNDA, whereas those whose asylum claims are examined under the priority procedure have a right of appeal to CNDA which is non-suspensive. However, onward appeals rights are all non-suspensive, whether the normal procedure or the priority procedure has been applied.

[44]The second difference is that the applicable timescales are more restricted under the priority procedure than under the normal procedure. If a person is in the detained priority procedure, the timescales are further shortened. The applicable timescales are as follows: i) In the normal procedure, the applicant has 21 days within which to lodge an asylum application with OFPRA ([44]). (The time limit for OFPRA’s examination of the asylum application is not apparent from the judgment in I.M. v France). ii) The following time limits apply under the priority procedure: a) The time limit for making an asylum application to OFPRA is five days from the date on which the individual is notified of his right to seek asylum and the conditions for exercising that right. (If the individual is in detention, the law provides for such notification to be given on the applicant's arrival in the administrative detention centre, in a language that the foreigner understands) (Articles L. 551-2 and L 551-3 of CESEDA) ([50]). b) OFPRA must make a decision on an asylum application within 96 hours if the asylum seeker is in detention and otherwise within fifteen days (Article R. 723-3 of CESEDA). However, the decision may be deferred if special investigations prove necessary ([56]). IV.

(a) Official Bulletin of the Ministry of the Interior

[45]On 5 December 2013, the French Ministry of the Interior issued an “official bulletin” (hereafter the “Bulletin”). An English translation has been provided. This is reproduced in Annex A to this judgment. It begins by referring to the following: i) that several judgments of the ECtHR concerning France have criticised the fact that asylum applications made by persons in detention are automatically assigned to examined under the priority procedure, without being related to “the circumstances of the case and to the content of the application and its foundation”. ii) the decree of the CJEU of 30 May 2013 in Arslan (C534/11) confirming the need to avoid any kind of automaticity in the detention of foreign nationals awaiting expulsion who have presented applications for asylum after being placed in an administrative centre, whilst noting that EU law does not oppose them being held in detention “if it appears, after a study in each case and of all relevant circumstances, that the application was introduced for the sole purpose of delaying or compromising the enforcement of the return decisionand that it is objectively necessary to maintain the measure of retention so as to prevent the interested person from avoiding his return”. iii) the prohibition of such automaticity under the 2013/33UE Directive of the European Parliament and Council of 26 June 2013, although the Directive permits detention pending deportation of a foreign national who makes an asylum application in detention where there are “reasonable grounds to believe that the applicant has presented the [asylum application] for the sole purpose of delaying or preventing the execution of the decision to return”.

[46]The Bulletin states that a bill would “soon” be submitted to Parliament in order to ensure that French law conforms “to these jurisprudential solutions” and implements the Directive. Until the new system was implemented, it was recommended “to comply with this case law and to stop the automatic nature of the examination of an asylum application presented in detention under the accelerated procedure above mentioned”.

[47]The Bulletin is addressed to the Ministry of the Interior, “General Direction of foreigners in France”, “Asylum Services” and “Department of right to asylum and to protection”. It invites the addressees to follow the following transitional measures: i) If OFPRA grants asylum, the person concerned should be released from detention immediately. ii) If OFPRA refuses asylum, the person concerned may be expelled from France subject to the applicant’s exercise of the suspensive right of appeal against an expulsion order. iii) If OFPRA reports to the Préfet that the asylum application of the person concerned does not appear to be manifestly unfounded and that it therefore requires further consideration, the Préfet is invited to put an end to the detention and the person concerned “can then be provided with a safe conduct granting temporary immunity from arrest in order to go to the prefecture to carry out the formalities inherent to his a capacity as applicant. The request [for asylum] is then dealt with, according to its characteristics in normal procedure or priority procedure”.

(b) Letters from UNHCR

[48]The letter dated 13 May 2014 from the UNHCR produced for the instant claim states, inter alia, that “no significant measures” have been introduced into the French asylum system since the judgment in I.M. v France on 2 May 2012 and that the French asylum system is currently undergoing legislative reform to introduce a remedy with suspensive effect against negative decisions of OFPRA when the priority procedure is applied and to bring it in line with the recast of the Procedures Directive.

[49]The letter from the UNHCR dated 18 September 2014 states, inter alia, that asylum seekers in France whose claims have been rejected on appeal and who have been served with a final negative decision from the CNDA are issued with an order to leave France. If such an order had already been issued within the previous period of one year, the French authorities may execute it. If no order had been issued or if the issued order is no longer valid, i.e. it is more than one year old, the Préfet may issue a new one, in which case the foreign national, once apprehended, may be placed in a detention centre or, alternatively, under house arrest.

[50]The letter dated 18 September 2014 goes on to refer to a recent decision from the French Council of State of 30 July 2014 which has ruled that, pending the new legal provisions in the framework of the legislative reform, Préfets should examine, on an individual basis, asylum applications lodged in detention centres before deciding to channel such applications through the priority procedure or maintaining their decision to detain. The UNHCR states that it was not aware of the practical effects of this decision. However, as per current practice, an asylum seeker against whom an order to leave has been issued and who is seeking a re-examination of his case while in a detention centre would be treated under the priority procedure.

V. The Dublin Regulation and the Reception, Qualification and Procedures Directives

[51]The Dublin II Regulation has been explained in many cases; for example, TI v United Kingdom [2000] INLR 211; KRS v United Kingdom

[2008] ECHR 1871

;

(2009) 48 EHRR SE8

; M.S.S. v Belgium and Greece

(2011) 53 EHRR 2

; and the Grand Chamber’s judgment in R (NS) v Secretary of State for the Home Department [2011] EUECJ C-411/10

[2013] QB 102

(21 December 2011). The most recent domestic cases are the judgments of the Supreme Court in R (EM (Eritrea)) v Secretary of State for the Home Department [2014] 2 W.L.R. 409;

[2014] UKSC 1

, Laing J in R (Tabrizagh and others) v Secretary of State for the Home Department

[2014] EWHC 1914 (Admin)

and the Court of Appeal’s refusal of permission in R (Tabrizagh and Others) v Secretary of State for the Home Department

[2014] EWCA Civ 1398

[52]The aim of the Common European Asylum System is a scheme that is valid throughout the Union which is fully compliant with the Refugee Convention and which has a common procedure for determining claims and uniformity for those granted refugee status. The Dublin II Regulation (now replaced by the Regulation (EU) No 604/2013 dated 26 June 2013, the “Dublin III Regulation”) (together the “Dublin Regulation”) established criteria and mechanisms for determining which Member State of the European Union should deal with an asylum claim, a key provision being that the first Member State that an asylum seeker enters is in general the Member State responsible for considering and deciding the claim. If the asylum seeker moves on to another Member State, he may be sent back without substantive consideration of his case. The “Eurodac” fingerprinting system enables Member States to detect multiple applications.

[53]Several European Directives have been issued to ensure greater uniformity amongst Member States; for example, Council Directive 2003/9/EC concerning the reception of asylum seekers (the “Reception Directive”); Council Directive 2004/83/EC which sets minimum standards for the qualification and status of asylum applicants (the “Qualification Directive”) and Council Directive 2005/85/EC which sets minimum standards for procedures for granting and withdrawing refugee status (the “Procedures Directive”).

[54]Given that the claimant contends that the factors giving rise to his risk of refoulement include problems with the procedures in France for the handling and consideration of his asylum claim (if he makes an application after removal), it is appropriate to summarise, albeit brielfy, the obligations of Member States in this regard.

[55]The assessment by Member States of the existence of a real risk must be a rigorous one, which implies that there must be a meaningful assessment of the claim for protection. In principle, it is acceptable for Member States to set procedural requirements for the submission and consideration of protection claims and to regulate any appeals process from adverse decisions at first instance. However, the automatic and mechanical application of such procedural requirements will be considered at variance(my emphasis) with the obligation as regards

Article 3 of the ECHR

: KRS (pages 142 and 143).

[56]The scope of the obligation imposed on a Member State in relation to the right to an effective remedy varies depending on the nature of the applicant's complaint. However, the remedy must be effective in practice as well as in law: M.S.S. (at [288]). The effectiveness of a remedy does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. Even if a single remedy does not by itself provide an effective remedy, the aggregate of remedies provided for under domestic law may do so: Gebremedhin v. France

(2010) 50 EHRR 29

(25389/05) (at [53]) and M.S.S. (at [289]). Asylum seekers must be afforded a suspensive right of appeal against refusal.

VI. The EU Charter

[57]The EU Charter has equal status to other European Union treaties as a result of the Lisbon Treaty. Its relevant rights constitute general principles of European Union law. The Charter is only binding when Member States act within the scope of Union law (Explanation to Article 51 of the Charter). The meaning and scope of the rights which correspond to rights guaranteed by the ECHR is to be determined by the text of the relevant rights as well as the case law of the ECtHR and the Court of Justice of the European Union (CJEU). It has not been suggested before me that the relevant judgments of the ECtHR and CJEU relied upon before me are inconsistent with each other. The level of protection afforded by the Charter may not be lower than that guaranteed by the ECHR but it can be more extensive. VII. Ground 1: Discussion of the relevant legal issues (a). Is there a presumption of compliance if the claimant relies upon EU Charter rights, as opposed to ECHR rights?

[58]Mr Husain submitted that, in all cases in which an individual relies upon an EU Charter right, the defendant must disapply the presumption in para 3(2) of Part 2 of Schedule 3 of the 2004 Act because every Dublin removal attracts EU law and the presumption in paragraph 3(2) is incompatible with the duty to investigate which, in turn, is relevant to the defendant’s obligations in relation to the EU Charter. Mr Husain relied upon [105] of NS.

[59]I can agree that para 3(2) does not refer to the EU Charter. It must follow that the presumption in para 3(2) does not apply if an individual relies upon EU Charter rights. Where the irrebuttable presumption in para 3(2) applies, removal will be lawful even if there is a real risk of a breach of

Article 3 of the ECHR

if the individual is removed to the Member State in question. As the judgment of the House of Lords in R (Nasseri) v Secretary of State for the Home Department

[2009] UKHL 23

makes clear, the remedy in that case will be a declaration of incompatibility. In contrast, it seems to me that, where EU Charter rights are relied upon, it might be argued that removal is unlawful without there being any incompatibility with para 3(2) if there is a real risk of torture or inhuman or degrading treatment or punishment contrary to Articles 4 and 19.2 of the EU Charter. I do not need to decide this point for reasons which will become clear.

[60]However, it does not follow, from the fact that para 3(2) does not apply if an individual relies upon EU Charter rights, that there is no presumption if EU Charter rights are relied upon. In NS, the CJEU, having considered the texts which constitute the Common European Asylum System ([78]), said (at [80]) that:

“… it must be assumed that the treatment of asylum seekers in all member states complies with the requirements of the [EU Charter, the Refugee Convention] and the ECHR”

. Para 105 of NS does not assist Mr Husain’s argument because it states that European Union law precludes the application of a conclusive presumption. The judgment goes on to make it clear that there is a significant evidential presumption of compliance.

[61]In my judgement, the evidential presumption of compliance applies even if EU Charter rights are relied upon. This not a legal presumption. It is rebuttable. The principles that apply are the same as those that apply when ECHR rights are relied upon.

[62]I do not accept Mr Husain's argument that the presumption is incompatible with the need to consider whether there are individual risk factors. In EM (Eritrea), Lord Kerr said (at [41] and [68]): “41. It is entirely right, however, that a presumption that the first state will comply with its obligations should not extinguish the need to examine whether in fact those obligations will be fulfilled when evidence is presented that it is unlikely that they will be. There can be little doubt that the existence of a presumption is necessary to produce a workable system but it is the nature of a presumption that it can, in appropriate circumstances, be displaced. The debate must centre, therefore, on how the presumption should operate. Its essential purpose must be kept clearly in mind. It is to set the context for consideration of whether an individual applicant will be subject to violation of his fundamental rights if he is returned to the listed country. The presumption should not operate to stifle the presentation and consideration of evidence that this will be the consequence of enforced return. Nor should it be required that, in order to rebut it, it must be shown, as a first and indispensable requirement, that there is a systemic deficiency in the procedure and reception conditions provided for the asylum seeker. 68.… Although one starts with a significant evidential presumption that listed states will comply with their international obligations, a claim that such a risk is present is not to be halted in limine solely because it does not constitute a systemic or systematic breach of the rights of refugees or asylum seekers.

(b) The principles re the presumption

[63]At the same time, Mr Husain cautioned me against over-reliance on NS. In this regard, he relied upon R (B) v Secretary of State for the Home Department

[2014] EWCA Civ 854

. At [31], the Court of Appeal said, referring to the Supreme Court’s judgment in EM (Eritrea):

“31.It is difficult to avoid the conclusion that, although the Supreme Court was purporting to apply and explain NS, it was to some extent departing from it. At the very least, EM (Eritrea) gives less weight than NS to the mutual confidence in Member States and the presumption of their compliance with EU law and fundamental rights….”

[64]However, in Tabrizagh, Laing J considered NS at [130]-[138] before turning to EM (Eritrea) at [139]-[150] and then going on to pose the two generic questions at [165], the first of which concerned the evidential presumption. She went on to say that she did not regard her conclusion that the evidential presumption had not been displaced as determinative of the issue whether the claimants were at risk of a breach of

Article 3 of the ECHR

, stating (at [178]) that it had to be considered whether there were individual risk factors relevant to Article 3 (of the ECHR) by applying the test in Soering v United Kingdom

(1989) 11 EHRR 439

. The Court of Appeal refused permission to appeal in Tabrizagh.

[65]Accordingly, I shall apply the same principles as were applied in EM (Eritrea),Tabrizagh and other Dublin cases in relation to the presumption of compliance, bearing in mind that the instant case concerns the risk of refoulement, at one remove, in breach of the right not to be subjected to torture or inhuman or degrading treatment or punishment. These principles may be summarised as follows:

[66]It has been repeatedly stated that mutual trust and confidence between Member States is a fundamental principle of the European Union. In EM (Eritrea), Lord Kerr said that the recognition of a presumption that member states of an alliance of states such as those which comprise the European Union will comply with their international obligations, reflects not only principle but pragmatic considerations ([40]). In the context of the Dublin Regulation, there is a presumption that contracting states to the Dublin Regulation will comply with their obligations under European law (which includes the European Directives mentioned above) and international law.

[67]In particular, there is a “significant evidential presumption” that the listed Member States will comply with their ECHR obligations towards asylum seekers on their territory: R (Elayathamby) v Secretary of State for the Home Department

[2011] EWHC 2182 (Admin)

, Sales J (as he then was), at [42(i)].

[68]The presumption is rebuttable. In R (Medhanye) v Secretary of State for the Home Department

[2011] EWHC 3012 (Admin)

, Kenneth Parker J said (at [12]) that it is for the claimant to rebut the presumption by pointing to a reliable body of relevant evidence. This was not disapproved of by the Supreme Court in its judgment in EM (Eritrea), although it was specifically quoted in its judgment at [65].

[69]A system will not be found to be deficient because of aberrations as long as it provides the required standard of protection if it operates as it usually does. In NS (which concerned a reference by the Court of Appeal), the CJEU said:

“83. At issue here is the raison d'être of the European Union … and, in particular, the Common European Asylum System, … 84. In addition, it would not be compatible with the aims of [the Dublin Regulation] were the slightest infringement of [the Reception Directive, the Qualification Directive and the Procedures Directive] to be sufficient to prevent the transfer of an asylum seeker to the member state primarily responsible…. 85. If the mandatory consequence of any infringement of the individual provisions of [the Reception Directive, the Qualification Directive and the Procedures Directive] by the member state responsible were that the member state in which the asylum application was lodged is precluded from transferring the applicant to the first mentioned state, that would add to the criteria for determining the member state responsible set out in Chapter III of [the Dublin Regulation]…. Such a result would deprive those obligations of their substance and endanger the realisation of the objective of quickly designating the member state responsible for examining an asylum claim lodged in the European Union.”

[70]NS requires it to be shown that “the omissions were on a widespread and substantial scale” or “that there were substantial operational problems”, rather than “inherent deficiencies in the system”: Lord Kerr in EM (Eritrea) at [66].

[71]As to the weight given to the evidential presumption of compliance, in KRS, the UNHCR had expressed its concern that the prevailing situation in Greece called into question whether “Dublin returnees” would have access to an effective remedy. The UNHCR's concern was shared by both Amnesty International and the Norwegian Organisation for Asylum Seekers and other non-governmental organisations in their reports (page 144 of KRS). The UNHCR had also advised Member States to refrain from returning asylum seekers to Greece under the Dublin Regulation until further notice (page 139 of KRS).

[72]In M.S.S., the Court had before it numerous reports and materials which added to the information available to it when KRS was decided; all were agreed as to the practical difficulties involved in the application of the Dublin system in Greece, the deficiencies of the asylum procedure and the practice of direct or indirect refoulement on an individual or a collective basis ([347]). There was an unequivocal plea by the UNHCR for the suspension of transfers to Greece ([349]).

[73]The material before the Court in KRS and the conclusion in M.S.S. that KRS was rightly decided, is indicative of the weight to be given to the evidential presumption of compliance: Laing J in Tabrizagh at [102].

[74]Where the ECHR right in question involves a positive obligation, then the evidence required to establish a real risk of treatment in breach of Article 3 “is more likely to partake of systemic failings”: Lord Kerr in EM (Eritrea) at [63]. I therefore bear in mind that the instant case is to be distinguished from EM (Eritrea) on the ground that it does not involve a positive obligation of the sort that was in issue in EM (Eritrea). (c) Whether real risk, or arguably real risk, of refoulement to Sudan

[75]Mr Manknell submitted that the essential question in relation to Ground 1 is whether there was a real risk of refoulement of the claimantto Sudanby France, in breach of the right not to be subjected to torture or inhuman or degrading treatment or punishment.

[76]Mr Husain submitted that, as the claimant's claim was certified as clearly unfounded, the test to be applied to decide whether the clearly unfounded certificate is lawful was that explained in ZT (Kosovo) v Secretary of State for the Home Department

[2009] 1 WLR 348

. He submitted that this means that the question is whether, if removed to France, the claimant is arguably at real risk of risk of refoulement, i.e. whether his case (that he was at risk of refoulement to Sudan) is bound to fail in an appeal before the First-tier Tribunal (FtT).

[77]In my judgement, Mr Husain's submission is misconceived. My reasons are as follows:

[78]The submission fails to recognise the scheme of para 5 of Part 2 of Schedule 3 of the 2004 Act, which provides:

“5.(1) This paragraph applies where the Secretary of State certifies that – (a) it is proposed to remove a person to a State to which this Part applies, and (b) in the Secretary of State’s opinion the person is not a national or citizen of the State. (2) The person may not bring an immigration appeal by virtue of section 92(2) or (3) of [the Nationality, Immigration and Asylum Act 2002 (the “NIAA”)] (appeal from within United Kingdom: general). (3) The person may not bring an immigration appeal by virtue of section 92(4)(a) of [the NIAA] (appeal from within United Kingdom: asylum or human rights) in reliance on – (a) an asylum claim which asserts that to remove the person to a specified State to which this Part applies would breach the United Kingdom’s obligations under the Refugee Convention, or (b) a human rights claim in so far as it asserts that to remove the person to a specified State to which this Part applies would be unlawful under section 6 of the Human Rights Act 1998 because of the possibility of removal from that State to another State. (4) The person may not bring an immigration appeal by virtue of section 92(4)(a) of [the NIAA] in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly founded. (5) Sub-paragraph (4) applies to a human rights claim if, or in so far as, it asserts a matter other than that specified in sub-paragraph (3)(b).” (a) it is proposed to remove a person to a State to which this Part applies, and (b) in the Secretary of State’s opinion the person is not a national or citizen of the State. (2) The person may not bring an immigration appeal by virtue of section 92(2) or (3) of [the Nationality, Immigration and Asylum Act 2002 (the “NIAA”)] (appeal from within United Kingdom: general). (3) The person may not bring an immigration appeal by virtue of section 92(4)(a) of [the NIAA] (appeal from within United Kingdom: asylum or human rights) in reliance on – (a) an asylum claim which asserts that to remove the person to a specified State to which this Part applies would breach the United Kingdom’s obligations under the Refugee Convention, or (b) a human rights claim in so far as it asserts that to remove the person to a specified State to which this Part applies would be unlawful under section 6 of the Human Rights Act 1998 because of the possibility of removal from that State to another State. (4) The person may not bring an immigration appeal by virtue of section 92(4)(a) of [the NIAA] in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly founded.

(b) ”

[79]By virtue of para 5(5), certification under para 5(4) can only relate to a human rights claim which raises a matter other than that specified in para 5(3)(b). Accordingly, the certification under para 5(4) has nothing to do with the refoulement ground relied upon in this claim. It must follow that the test for deciding whether the defendant’s decision to certify a human rights allegation as clearly unfounded does not apply to the refoulement ground relied upon.

[80]In my judgement, on a proper analysis, there is no issue before me concerning the certification under para 5(4). I say this because: i) In his witness statement, the claimant alleged that he was ill-treated whilst in detention in France. He alleged that the police kicked him with their boots nearly every day ([15], C200). However, no challenge was brought to the certification on the ground that he is at real risk of being ill-treated in detention in France. In any event, an appeal to the FtT on the ground that the claimant is at real risk of ill-treatment in detention in France is bound to fail on any legitimate view, applying the test explained in ZT (Kosovo). ii) The claimant did not advance any human rights claim based on any private or family life in the United Kingdom. iii) The claimant’s skeleton argument raised an argument that the claimant would be at real risk of arbitrary detention in France, i.e. that he would be at real risk of suffering a flagrant breach of his rights under

Article 5 of the ECHR

. However, this ground was dropped at the hearing. iv)

Article 13 of the ECHR

is not included in the list of human rights set out at Schedule 1 of the 1998 Act. It is accepted on the claimant's behalf that Article 13 (of the ECHR) has not been incorporated into domestic law (claimant’s skeleton argument, at [29(2)]). Accordingly, the claimant's allegation that his asylum claim will not be handled fairly in France and/or that he will not have an effective remedy if his asylum claim is again refused cannot amount to a human rights allegation. In any event, given that no challenge was brought to the certification on the ground that he is at real risk of being ill-treated in detention in France or that removal would be in breach of

Article 8 of the ECHR

and given that the

Article 5 ECHR

ground was dropped at the hearing,

Article 13 of the ECHR

cannot be the subject of a freestanding allegation to which the certification in para 5(4) can apply. v) Allegations based on EU Charter rights cannot be the subject of any certification under para 5(4) because para 5(4) only applies to human rights claims, which is defined in Part 1 of Schedule 3 of the 2004 Act. This definition does not include EU Charter rights.

[81]Accordingly, the test for deciding whether a clearly unfounded certificate is lawful does not apply in the instant case at all.

[82]I distinguish EM (Eritrea) and Laing J’s judgment in Tabrizagh. The claimants in EM (Eritrea) and Tabrizagh had alleged that their removal to Italy would be in breach of their rights under

Article 3 of the ECHR

because of ill-treatment in the receiving state. Accordingly, they made human rights allegations other than the risk of a refoulement and which were certified by the defendant under para 5(4). This is why the applicable test in these cases was whether there was arguably a real risk of ill-treatment in breach of

Article 3 of the ECHR

(EM (Eritrea) at [8] and [26]) and why the facts asserted by the claimants were taken at their highest (EM (Eritrea) at [8]).

[83]Accordingly, where the issue is whether the removal of an individual to a State listed in Part 2 is prohibited on the ground that such removal exposes him to refoulement in breach of his right not to be subjected to torture or inhuman or degrading treatment or punishment, the essential question is whether there is a real risk of refoulement in breach of the right not to be subjected to torture or inhuman or degrading treatment or punishment. (d) Whether the substantive asylum claim is relevant in rebutting the presumption

[84]Mr Husain asked me to assess the claimant's substantive protection claim. He submitted that, if I concluded, having assessed the claimant's substantive protection claim, that he is at real risk of treatment contrary to Article 3 in Sudan, then the presumption is rebutted. In other words, if I accept that the claimant is a non-Arab Darfuri, this will rebut the presumption. In support of this proposition, he relied upon [103]-[104] of the recent judgment of the ECtHR in Tarakhel v Switzerland

(2014) EHRR 1185

(29217/12, 4 November 2014) which read: “103. It is also clear from the M.S.S. judgment that the presumption that a State participating in the “Dublin” system will respect the fundamental rights laid down by the Convention is not irrebuttable. For its part, the Court of Justice of the European Union has ruled that the presumption that a Dublin State complies with its obligations under Article 4 of the Charter of Fundamental Rights of the European Union is rebutted in the event of “systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State” (see paragraph 33 above). 104. In the case of “Dublin” returns, the presumption that a Contracting State which is also the “receiving” country will comply with

Article 3 of the Convention

can therefore validly be rebutted where “substantial grounds have been shown for believing” that the person whose return is being ordered faces a “real risk” of being subjected to treatment contrary to that provision in the receiving country.” (my emphasis)

[85]In my judgement, Mr Husain has misconstrued [103]-[104] of Tarakhel. It is clear from the concluding words “in the receiving country” in [104] that the ECtHR was addressing the risk of ill-treatment contrary to

Article 3 of the ECHR

in the receiving Member State. This is because Tarakhel concerned the risk of such Article 3 ill-treatment in the receiving Member State (Italy).

[86]Furthermore, I agree with Mr Manknell that Mr Husain's submission, if accepted, would drive a coach and horses through the Dublin Regulation. The whole purpose of the Dublin Regulation is to set the criteria which determine the Member State that is responsible for considering the substantive asylum claim of an individual and to permit removal to that Member State by another Member State without substantive consideration.

[87]In addition, the ECtHR said in M.S.S., in its assessment of the question whether Greece, the receiving state, had violated Article 13 taken in conjunction with Articles 2 and 3 of the ECHR because of the shortcomings in the asylum procedure (issue III in M.S.S)), that it does not itself examine the actual asylum applications or verify how the states honour their obligations under the Refugee Convention, its main concern being whether effective guarantees exist that protect the applicant from arbitrary refoulement, direct or indirect, to the country from which he/she has fled ([286]). The machinery of complaint to the ECtHR is subsidiary to the national system ([287]). Although the ECtHR said ([297]) that the claimant had an arguable claim under Articles 2 and 3 of the ECHR, the court did not indicate that it was necessary to consider whether the substantive asylum claim was arguable.

[88]Finally, there is simply no authority for the proposition at [10] of the claimant’s skeleton argument that the stronger the likelihood that the claimant is a member of the Tunjur tribe, the lower the threshold at which procedural deficiencies in the French system will give rise to a real risk of refoulement. I reject the submission.

[89]I therefore decline Mr Husain’s invitation to assess the claimant's substantive asylum claim in my consideration of the question whether the claimant is at real risk of refoulement, at one remove. I do not need to rely upon the Court of Appeal's decision on the permission application in R (EW) v Secretary of State for the Home Department

[2010] EWCA Civ 508

, where at [19] Waller LJ said that it is not in the ordinary circumstances for an English Court to enquire into the conduct of other countries as to whether they are complying with their international obligations. Mr Husain objected to the admissibility of this decision on the ground that the decision was a permission decision. (e) Whether the possibility of a rule 39 application to the ECtHR should be ignored

[90]There were several arguments advanced on the claimant’s behalf as to the reasons why it would be impermissible to take into account the possibility of an application to the ECtHR for interim protection under rule 39, in deciding whether there is a real risk of refoulement, at one remove. I reject them all, for reasons I will now give.

[91]The first argument was developed from Mr Manknell’s acceptance that, if an individual complained that a Member State was in breach of its obligation to provide an effective remedy and the relevant right relied upon is Article 47 of the EU Charter, it would be impermissible to take into account the possibility of applying to the CJEU under its equivalent of rule 39 in order to decide whether the Member State in question was in breach of its obligation to provide an effective remedy under Article 47 of the EU Charter. Mr Manknell accepted that this would be a circular argument. However, Mr Manknell submitted that the possibility of a rule 39 application to the ECtHR would not give rise to any such circularity and would not therefore contravene EU law, if the right relied upon is Article 47 of the EU Charter.

[92]Mr Husain drew from this an acceptance by Mr Manknell that the possibility of a rule 39 application to the ECtHR cannot be relied upon in order to decide whether a Member State is in breach of its obligation to provide an effective remedy under

Article 13 of the ECHR

, as this would also be circular. He therefore submitted that the possibility of a rule 39 application cannot be relied upon in order to decide whether a Member State is in breach of its obligation to provide an effective remedy under Article 47 of the EU Charter because Union law can provide greater protection than the ECHR but not less.

[93]I respond to this argument as follows:

[94]It is my understanding that Mr Manknell was speaking about the possibility of taking account of a rule 39 application to the ECtHR against the Member State whose procedures are the subject of the complaint that an individual has not had an effective remedy, whereas the instant case concerns taking account of a rule 39 application as against another Member State (France) in order to decide whether removal by the United Kingdom to France would give rise to a real risk of refoulement, at one remove. The reality is that, in cases where an individual resists removal by one Member State to another Member State on the ground of a risk of refoulement by the receiving Member State, the possibility of the individual applying under rule 39 to the ECtHR as against the receiving Member State has been taken into account in the past. In KRS, the ECtHR specifically took it into account in relation to risk of refoulement from the territory of the receiving Member State. It said (page 144):

“… there is nothing to suggest that those returned to Greece under the Dublin Regulation run the risk of onward removal to a third country where they will face ill-treatment contrary to art. 3 without being afforded a real opportunity, on the territory of Greece, of applying for a r.39 measure to prevent such.”

[95]Secondly, by seeking to apply the principle that Union law may provide greater protection, but not less, to the question whether it is permissible to take into account the possibility of an application under rule 39 to the ECtHR or an application under the CJEU’s equivalent rule to the CJEU to decide whether a Member State is in breach of its obligation to provide an effective remedy, Mr Husain is elevating rule 39 to a something akin to a substantive right. In fact, rule 39 is part of the ECtHR’s Rules of Court/Practice Directions. The right to an effective remedy does not fall within the scope of Article 52 of the EU Charter. This is because Article 52.3 provides: “In so far as this Charter contains rights which correspond to rights guaranteed by [the ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. ” refers to the rights guaranteed by the ECHR and the rights guaranteed by the ECHR do not include rule 39.

[96]Thirdly, and in any event, a claimant cannot circumvent the Dublin Regulation, the system set up pursuant to it to allocate responsibility for handling asylum applications, the Common European Asylum System and the various Directives setting minimum standards simply by relying instead on the cognate EU Charter rights, especially where no explanation has been given why the principle that EU law can provide greater but not less protection is relevant.

[97]Mr Husain requested me to make a reference to the CJEU if I were minded to accept that the possibility of an application under rule 39 can be relied upon in order to decide whether the claimant will have an effective remedy under Article 47 of the EU Charter. I decline to make that reference for the reasons given above. In addition, the issue before me is not whether the claimant will have an effective remedy in France under Article 47 of the EU Charter but whether his removal to France will give rise to a real risk of refoulement at one remove, albeit that the effectiveness of his remedy in France may be relevant in answering that question.

[98]The second argument was that the Grand Chamber has recognised that it may not have all the information it needs at the time of a rule 39 application (M.S.S., at [355]). However, this argument takes the observation of the Grand Chamber at [355] of M.S.S. out of context. At [355], the Grand Chamber was considering the argument of the Belgium government in resisting the complaint of the petitioner against it under Articles 2 and 3 of the ECHR, that the ECtHR had not itself considered it necessary to give a rule 39 indication for the petitioner's transfer to be suspended. The ECtHR rejected the argument, making the observation that at the rule 39 stage, it will not always have all the information it needs in order to analyse a case in depth. The key point it made was that the ECtHR's decision on a rule 39 application does not prejudge its examination of the substantive case. It went on to say that in principle, the most normal course of action is for a petitioner to lodge applications only against the receiving Member State after having exhausted domestic remedies in that State ([357]).

[99]The third argument was that Lord Kerr did not mention the availability of rule 39 applications in the judgment in EM (Eritrea), nor did the ECtHR in Tarakhel v Switzerland (29217/12). However, this argument ignores the fact that both cases concerned ill-treatment/conditions in the receiving Member State itself. The possibility of a rule 39 application from the receiving Member State could not address a complaint that the Member State removing an individual to the receiving Member State is in breach of its own obligation not to expose the individual to Article 3 ill-treatment in the receiving Member State.

[100]I therefore reject all the arguments advanced on the claimant's behalf that the possibility of making an application under rule 39 to the ECtHR should not be taken into account. There is clear authority to show that this possibility should be taken into account in cases involving challenges on the ground that there is a real risk of refoulement by the receiving a Member State. I have already referred to KRS. Further, in M.S.S., the Grand Chamber described it as “the most normal course of action” ([357]).

[101]There is also domestic authority to this effect; for example, Elayathamby, Sales J at [43]. In Nasseri, the issue was whether the claimant’s removal to Greece would expose him to a real risk of being sent by Greece to Afghanistan in breach of his rights under

Article 3 of the ECHR

. Commenting on KRS, Lord Hoffmann observed ([41]) that: “… the [ECtHR] also appears to have been of the opinion that there are limits to the extent to which one Member State of the European Union can be expected to police the asylum policy of another. The European Commission is responsible for enforcing the obligations of Member States under the Dublin Regulation to process asylum applications which are their responsibility and to give effect to the asylum directives. Other Member States are entitled to assume – not conclusively presume, but to start with the assumption – that other Member States will adhere to their treaty obligations. And this includes their obligations under the European Convention to apply article 3 and give effect to the rule 39 indications. There is no evidence that in respect of applicants returned under the regulation, Greece has not done so.” (my emphasis)

[102]Mr Manknell submitted, in reliance upon [357] of M.S.S., that it is only when the possibility of making an application under rule 39 is illusory that it would be appropriate to disregard it in deciding whether there is a real risk of refoulement by the receiving Member State. In making this observation in M.S.S., the Grand Chamber mentioned the fact that it had also taken into account the very small number of rule 39 requests for interim measures against Greece that were lodged by asylum seekers in that country, compared with the number lodged by asylum seekers in the other States.

[103]Mr Husain cautioned against reliance upon [357] of M.S.S.. He submitted that the Grand Chamber meant no more than that the possibility of making a rule 39 application had to be a practical and effective possibility.

[104]I do not need to decide whether the Grand Chamber was laying the test that rule 39 applications are to be disregarded only if the possibility of making such an application is illusory. Whatever the test, M.S.S. shows that it is necessary to take into account any evidence as to the difficulties that are experienced in individuals being able to make applications under to the ECtHR under rule 39 in deciding whether there is a real risk of refoulement by the receiving Member State in breach of Article 3.

[105]In this respect, I have not been referred to any evidence that there have been any such difficulties in France at all. I have not been referred to any evidence that France does not abide by positive decisions by the ECtHR on rule 39 applications. There is no mention in I.M. v France or in M.V. and M.T. v France of any such difficulties or that the number of applications received by the ECtHR from applicants in France is low compared to applications from other countries.

[106]Indeed, the claimant was himself able to make a rule 39 application by fax when he was in France, albeit that he was in detention. The fact that his application was refused does not mean that it should not be taken into account.

[107]Accordingly, the possibility of the claimant making an application as against France to the ECtHR under rule 39 is part of the overall picture in deciding whether there is a real risk of refoulement contrary to the Article 3. If I conclude (having taken into account such a possibility) that the claimant is not at real risk of being exposed, at one remove, to treatment in breach of his right not to be subjected to torture or inhuman or degrading treatment or punishment, he may be removed to France. He will then have to address any procedural complaints he has by taking the matter up with the French authorities and, failing that, the ECtHR (if he relies upon

Article 3 of the ECHR

) under rule 39 or the CJEU (if he relies upon the corresponding EU Charter rights) under its equivalent of rule 39.

(e) Autonomous interpretation: the “Adan and Aitseguer” issue

[108]Adan and Aitseguer involved two appeals which concerned removals of two asylum seekers to a safe third country, the first to Germany and the second to France. Germany and France adopted a different interpretation of the definition of “refugee” within Article 1A(2) of the Refugee Convention from that adopted by the United Kingdom and the majority of other contracting states, in that, persecution from non-state agents was not attributed to the state unless the state tolerated or encouraged such persecution or at least was unwilling to offer protection against it. Inability of the state to provide protection – for example, because there was no effective state authority in the area where the persecution occurred - was not enough for it to be attributed to the state. The House of Lords upheld the Court of Appeal, holding that there was only one true and autonomous interpretation to be ascribed to Article 1A(2) of the Refugee Convention and that, in interpreting the definition differently, Germany and France were not safe third countries.

[109]Mr Husain submitted that the principle decided in Adan and Aitseguer applies in the instant case. The United Kingdom recognises non-Arab Darfuris as refugees. In the United Kingdom, it does not matter whether the individual concerned is actually from Darfur, as long as he or she belongs to a non-Arab tribe that is Darfuri. The United Kingdom accepts that internal flight is not an available option. This contrasts with the position in France. In this respect, reliance is placed upon the second statement of Mr. Ficek in which he states that the claimant's chances of being granted asylum upon a “re-examination” of his asylum claim, which is how a second asylum claim by him will be treated, were “still extremely low” for two reasons: firstly, OFPRA and the appeals courts in France in practice will only accept evidence of identity including ethnic identity which originates from the country of origin; and secondly, the claimant would need to establish not only that he is a Tunjur but that he had lived in the Darfur region and could not relocate elsewhere.

[110]It is therefore contended that there are three differences: that France requires an individual to have previously lived in Darfur; that France requires documents from Sudan to establish ethnicity and origin from Darfur (an issue which goes to the assessment of credibility); and that the individual has to show that he/she has no viable internal flight option.

[111]I respond to this argument as follows:

[112]In the first place, expert evidence has not been adduced, nor has the proper procedure for the use of expert evidence under Part 35 of the CPR been followed, to establish these points of difference. As a result, the weight that I am able to give Mr Ficek’s evidence is reduced. Although I acknowledge that the judge in the claimant's appeal to the CNDA likewise referred to it not being sufficient even if the claimant was a member of the Tunjur tribe [9.xii] above], that does not mean that the judge’s decision is evidence of the correct position in France. Accordingly, the claimant has not established that there is a difference in approach, as contended.

[113]In any event, I do not accept Mr Husain’s submissions. There is a distinction between cases that involve third countries’ interpretation of the Refugee Convention and those involving their application of it. If the principle in Adan and Aitseguer were to be extended so as to apply to differences in application arising out of procedural differences and/or the third country's assessment of the country conditions and/or its credibility assessment, this would wholly undermine the important objective of speedy identification of the responsible Member State that underpins the Dublin Regulation and, further, it would compromise and undermine the rationale of the entire system. There are checks and balances within the system designed to ensure that individuals are not removed by Member States to a territory where there is a real risk of relevant ill-treatment. In my judgement, if the claimant receives an adverse decision that is due to any such differences, he would have to pursue the matter by challenging the decision within France and failing that, take the matter up with the ECtHR/CJEU, depending on whether he relies upon his rights under the ECHR or the EU Charter.

VIII. Ground 1: The generic and the individual questions

[114]In formulating the generic and specific questions in the instant claim, it is necessary to bear in mind that this claim concerns whether there is a real risk of refoulement, at one remove, whereas EM (Eritrea) and Tabrizagh concerned whether the risk of ill-treatment (due to living conditions and such like) gave rise to a real risk of a breach of

Article 3 of the ECHR

in the receiving Member State.

[115]Applying by analogy the reasoning at [178] of the judgment of Laing J in Tabrizagh, approved by the Court of Appeal in Tabrizagh, with the modification that the human rights claim in the instant case is not one to which the clearly unfounded certificate applies, the generic and specific questions are as follows: i) The generic question is whether the evidential presumption that France will comply with its obligations under the Dublin Regulation and not remove the claimant to Sudan in breach of the right not to be subjected to torture or inhuman or degrading treatment or punishment is displaced. ii) If the evidential presumption is not displaced, it is necessary to go on to consider whether there are individual risk factors (when considered against the backdrop of the evidential presumption), that show a real risk that France will remove the claimant to Sudan in breach of his right not to be subjected to torture or inhuman or degrading treatment or punishment, by applying the Soering test.

IX. Ground 1: Assessment of the generic question

[116]It is relevant to bear in mind that the ECtHR applies the principle of subsidiarity by which it restricts its pronouncement evaluating the effectiveness of national procedures and ensuring that the said procedures operate with respect for human rights: I.M. v France at (136] and M.S.S. at [286]-[287]. Its main concern is whether effective guarantees exist that protect the applicant against arbitrary refoulement, direct or indirect, to the country from which the applicant has fled.

[117]This is relevant because it means that, if the ECtHR finds a violation of Article 13 taken in conjunction with Article 3, it is unlikely that it will make general observations about any procedural problems in the Member State. Its focus will be whether in the circumstances of the specific case in question, there has been a violation of

Article 13 of the ECHR

taken with Article 3. Having said that, in M.S.S., the ECtHR did say, inter alia, that domestic practice in Greece was “riddled with procedural weaknesses” (at headnote H22). The judgments in I.M. v France and M.V. and M.T. v France

[118]In I.M. v France, the ECtHR had before it evidence of procedural problems in France for asylum applicants placed in the priority procedure. The petitioner in I.M. v France was placed in the detained priority procedure. He was granted refugee status in France by the date of the hearing before the ECtHR. The ECtHR found a violation of

Article 13 of the ECHR

combined with Article 3.

[119]The petitioners in M.V. and M.T. v France were placed in the non-detained priority procedure. The ECtHR found that, if removed to Russia, their country of nationality, there would be a violation of

Article 3 of the ECHR

. However, it found that there had been no violation of

Article 13 of the ECHR

taken together with Article 3.

[120]Turning first to I.M. v France, the petitioner was a Sudanese national from the Darfur region and an ethnic Meidob, i.e. of non-Arab ethnicity. He was arrested by the French border police on the day of his arrival in France (23 December 2008). The ECtHR accepted his evidence that he had expressed his wish to claim asylum from this point onwards but it was not recorded by the French authorities until 22 January 2009. His asylum application was assigned to the priority procedure. By the time his asylum application was recorded on 22 January 2009, an expulsion order had been issued (on 7 January 2009) and his only suspensive appeal against the expulsion order rejected (on 12 January 2009). His asylum application was refused by OFPRA on 30 January 2009. He appealed to the CNDA but, as the appeal was non-suspensive, he applied on 16 February 2009 to the ECtHR for a rule 39 indication. By this time, he had obtained documents to establish his ethnic origin and the Darfur origin of his family. The ECtHR decided to give a rule 39 indication. By the date of his application to the ECtHR under rule 39, he had already been presented to the Sudanese authorities who issued him with a travel document. Between the date of his rule 39 application and the date of the hearing before the ECtHR, CNDA pronounced its decision (on 14 October 2010) and overturned OFPRA's decision. The petitioner was granted refugee status.

[121]M.V. and M.T. v France involved two Russian nationals (husband and wife) whose asylum applications were handled under the non-detained priority procedure. They were under threat of expulsion from France to Russia. They contended that their expulsion to Russia would be in breach of their rights under

Article 3 of the ECHR

and that there had been a violation of Article 13 in conjunction with

Article 3 of the ECHR

. The ECtHR found in their favour in relation to

Article 3 of the ECHR

. In giving its reasons, it said that none of the French national bodies had given in their decisions “sufficient, explicit and detailed evidence” to refute its conclusion that the evidence adduced by the petitioners established a real risk of treatment in breach of

Article 3 of the ECHR

[122]However, the ECtHR concluded in M.V. and M.T. v France that there was no violation of

Article 13 of the ECHR

taken together with Article 3. The petitioners had made their asylum applications on 5 November 2008 but their applications were submitted by the Préfet to OFPRA only on 2 February 2009, after three fingerprinting attempts which were unsuccessful because “of the bad state of their fingers”. It followed that, in contrast to the petitioner in I.M. v France, the petitioners were free and had three months to prepare the narrative of the facts and obtain documents to support their asylum applications. In addition, they had not alleged that they had lacked time to produce documents or to translate them. Finally, they had had the benefit of a suspensive appeal before the Administrative Court against the expulsion order. In the circumstances, they could not validly support their claim that their accessibility of the available resources was affected by the brevity of any deadlines that applied to them and by the material difficulties they experienced to obtain the necessary proof.

[123]The judgment in I.M. v France requires closer examination. The ECtHR had before it the representations of the UNHCR as the intervening party. The UNHCR emphasised that the single act of lodging an application for asylum when in detention including after notification of an expulsion measure, did not suffice to establish the unfounded or abusive nature of the application and imply examination under the priority procedure. It also mentioned the following concerns: i) The conditions for making asylum applications to OFPRA in the detained priority procedure were particularly constraining: asylum seekers had 5 days to lodge an asylum application in French and no translator was provided by the authorities. The deadlines allowed for OFPRA to reach a decision were short, notably for complex applications. The deadline was 96 hours for those detained. An appeal before CNDA does not even palliate the inadequacies of the procedures before OFPRA, since it has no suspensive effect and the applicant may be removed before the CNDA adjudicates ([120]). ii) Whilst an appeal against an expulsion order may appear effective in theory, it did not in practice guarantee a careful rigorous examination. This was what had happened in the instant case, since the CNDA acknowledged the petitioner’s refugee status whereas the Administrative Court judge rejected his case. The time limit for appealing to the Administrative Court judge (48 hours) was short. Whilst in theory the applicant was entitled to an interpreter, it was difficult to obtain one in practice. Applicants are not always informed of the possibility of requesting an interpreter. As a result, they frequently do not benefit from the services of an interpreter, or the latter appears only during the hearing before the Administrative Court judge and not when the application to the judge is prepared. The 72-hour deadline for the Administrative Court to adjudicate was not adequate to allow as rigorous as possible an examination of the application.

[124]The UNHCR considered that the CNDA appeared more capable than the Administrative Court of conducting “the most rigorous possible examination”. The CNDA was a specialised court. The UNHCR’s position was that the asylum procedure in detention combined with an appeal against an expulsion order before the Administrative Court could not guarantee a careful and vigorous examination of the need for international protection.

[125]In addition to the submissions of the UNHCR as intervening party, the ECtHR in I.M. v France had before it the following: i) A letter dated 3 August 2010 from the Human Rights Commissioner to the French Minister of Immigration, Integration, National Identity and Social Development which requested the French authorities to introduce a suspensive right of appeal to CNDA for those in the priority procedure. It stated that the 15-day period for OFPRA to decide an asylum application in the priority procedure reduced the possibility for a detailed study of the case by OFPRA or a second interview. The letter referred to the fact that CNDA plays a predominant role in awarding protection orders given OFPRA’s low rate and that 68% of protection orders granted in 2008 were granted after a decision by CDNA([77]). ii) In its “Final Observations” of 31 July 208 on the fourth periodic report presented by France, the United Nations Human Rights Commission said that it was concerned by information that foreigners were returned to countries where they were in danger and that the Commission had also received information indicating that foreigners were frequently not correctly informed of their rights, especially the right to seek asylum, and they were frequently not guaranteed legal aid ([80)]. iii) In its “final observations” published on 20 May 2010 concerning France, the United Nations Committee against Torture (UNCAT) said that the committee remained concerned that 22% of asylum applications presented in 2009 were processed under the so-called priority procedure which did not provide for a suspensive appeal against any initial refusal by OFPRA. The committee recommended that France establish a suspensive appeal for asylum seekers placed in the priority procedure ([81]). iv) A report dated 10 December 2007 from the European Committee for the Prevention of Torture (CPT), following its visit to France from 27 September 2006 to 9 October 2006, which stated that, whilst applications for asylum could be made by persons in detention, the procedures to be followed were riddled with difficulties. In particular, detainees had a maximum of five days to make an application which had to be lodged in French. Any assistance by an interpreter was at the applicant’s expense. The availability of paper and writing instruments in detention centres was frequently a lottery. Ultimately, the only chance of the detainee rests on the shoulders of CIMADE personnel who were constrained to select the cases they will support. The CPT recommended that the French authorities increase the period for filing an asylum application by detainees to a minimum of ten days ([79]). v) There was evidence from CIMADE that pens were prohibited in most centres. However, there was also evidence of a circular dated 14 June 2010 from the Minister of Immigration which resolved this difficulty, in that, it authorised the possession of pens inside detention centres ([53]).

[126]The ECtHR found a violation of

Article 13 of the ECHR

combined with Article 3. In giving its reasons in I.M. v France, the ECtHR referred to various difficulties that the petitioner had experienced in practice in France. He had prepared his asylum application without the help of an interpreter, notwithstanding that he was required to make his application in the French language. CIMADE was only able to provide him with limited assistance. He had to adhere to short deadlines to obtain proof of his ethnic origin and the Darfur origin of his family, which did not allow for such proof to be assembled through the intermediary of outside contacts, as he was in detention. The lack of such proof resulted in his appeal to the Administrative Court being rejected; submission of such proof resulted in CNDA subsequently allowing his appeal. The evidence was therefore decisive. Although the appeal to the Administrative court was fully suspensive, the petitioner in practice came up against significant obstacles, in that, he had 48 hours to prepare his appeal, which obliged him to do so with no access to a lawyer or language assistance. He was therefore hampered in making his written application to the Administrative Court.

[127]The ECtHR said that the fact that the petitioner’s asylum application was handled under the priority procedure “resulted in an extremely rapid, even summary processing by OFPRA” of his asylum application ([148]). Although appeals were theoretically available to the petitioner, their accessibility was limited by several factors linked, basically, to the automatic classification of his application in the priority procedure and the short time allowed for lodging the appeals available to him.

[128]However, when the judgment in I.M. v France is considered as a whole, it is plain that the ECtHR's key concern was that the single fact that the petitioner’s asylum application was considered by the French authorities to have post-dated the expulsion order was in itself sufficient for them to consider that it was based on “deliberate fraud” or constituted “an abusive asylum application” ([141]). The Court noted that this single element caused the petitioner’s application to be classified in the priority procedure. Interestingly, the Court said ([141]):

“The Court can only find that the automatic character of classification in the priority procedure of the petitioner's application was linked to procedural requirements and unrelated either to the circumstances of the case, or the content of the application and its basis.”

[129]This concern is specifically mentioned (indeed, in very similar terms) in the Bulletin which expressly states that legislation would soon be introduced in order to ensure that French law conforms “to these jurisprudential solutions” and which recommends that the transitional measures mentioned therein to be followed in the meantime.

[130]The mere fact that an appeal to the CNDA is non-suspensive in the priority procedure does not, of itself, mean that there is a real risk of refoulement by France in breach of an individual's right not to be subjected to torture or inhuman or degrading treatment or punishment. The ECtHR was clearly aware in I.M. v France that the lack of a suspensive right of appeal to CNDA against a refusal by OFPRA was UNHCR’s main concern in its representations as an intervening party as well as that of the Human Rights Commissioner in his letter dated 3 August 2010 to the French Minister of Immigration, Integration, National Identity and Social Development and a concern of UNCAT. However: i) The ECtHR in I.M. v France specifically acknowledged (at [138]) that French law offers two channels of challenge and that, pursuant to Vilvarajah et al v United Kingdom, at [122], the organisation of internal appeals falls within the remit of individual States. ii) In I.M. v France, the French government said that no person may be removed from France unless an expulsion order has been issued and, if the expulsion order is appealed, the decision of the Administrative Court judge has been delivered. Neither the rejection of the application by OFPRA or by CNDA could result in expulsion ([114]). If an appeal against an expulsion order is lodged, the Administrative Court judge must consider whether the decision would breach the individual's rights under

Article 3 of the ECHR

. He/she is not limited to considering the case on judicial review principles [68]. iii) The ECtHR in I.M. v France acknowledged that the appeal against the expulsion order was fully suspensive and stated that it came before a judge “whose competence to examine grievances under article 3 [of the ECHR] cannot be called into question”. It said that “this appeal should, in theory, have allowed the [Administrative Court judge] to conduct an effective examination of the risks asserted by the petitioner, should he be returned to Sudan” ([149]). iv) Both I.M. v France and M.V. and M.T. v France referred to Sultani v France (No.45233/05) in which the ECtHR considered that the re-examination of an application for asylum under the priority procedure in a case where the first application had been considered under the normal procedure did not deprive the applicant in detention of an elaborate examination of his claim. The Court went on to say in M.V. and M.T. v France that the simple fact that an application for asylum is handled in the priority procedure and thus under a restricted deadline cannot subsequently, by itself, enable the ECtHR to conclude that the examination had been ineffective. v) Besides the fact that the ECtHR concluded in M.V. and M.T. v France that there was no violation of

Article 13 of the ECHR

taken together with Article 3, the judgment in M.V. and M.T. v France mentions two other judgments at [61] in which the ECtHR had found no violation of

Article 13 of the ECHR

taken together with Article 3, having found that the petitioners had particularly delayed making their asylum applications and that they therefore had been able to gather beforehand evidence to support their asylum applications. These other judgments are M.E. v France(No.50094/10, 6 June 2013), where the petitioner had had three years to present his asylum claim, and K.K. v France (No.18913/11, 10 October 2013), where the petitioner had had two years. Thus, the two judgments provided to me deal with or mention four cases; all concerned individuals whose claims were examined under the priority procedure in France which meant that they did not have a suspensive appeal to the CNDA. The ECtHR found a violation of

Article 13 of the ECHR

taken together with Article 3 in one of them. This means that the mere fact that an appeal to the CNDA is non-suspensive is not, of itself, sufficient to rebut the evidential presumption of compliance. It also means that any procedural and other problems that exist in France are not experienced on a scale wide enough to rebut the significant evidential presumption of compliance.

[131]In my view, the key to understanding the reason why the constrained timescales and other difficulties combined in I.M. v France to lead to a breach of

Article 13 of the ECHR

taken together with Article 3 is that, as a result of the fact that the French authorities did not record the petitioner's asylum application until 22 January 2009, he lost his only suspensive appeal (i.e. his appeal against the expulsion order) a mere 20 days after the date of his arrival in France (he arrived in France on 23 December 2008 and his appeal against the expulsion order was rejected on 12 January 2009). This is why the ECtHR said that it was only its rule 39 decision that prevented the expulsion of the petitioner to Sudan. This is why the ECtHR said that the period he had was not sufficient to enable him to assemble “his proof through the intermediary of outside contacts”. It is in this context that the difficulties experienced by the petitioner in I.M. v France and relied upon by the ECtHR should be seen.

[132]I.M. v France is the only case produced by the claimant in which there was a finding against France of a violation of

Article 13 of the ECHR

taken together with

Article 3 of the ECHR

. It was a stark and exceptional case. The decision maker was therefore fully entitled to take the view (at [19]) that one such case was not enough. Although at [19] of the decision letter, the decision maker said that it was not accepted that one such case established that there were systemic deficiencies in France, it is nevertheless clear (from [18] and [46] of the decision letter) that the decision maker considered the evidence I.M. v France about operational difficulties that exist in practice and not merely whether the evidence showed systemic failures.

[133]Mr Husain accepted that examination of an asylum application under the detained priority procedure is not in itself enough to establish a real risk of refoulement. This must be correct, given the judgments in I.M. v France and M.V. and M.T. v France. One would otherwise expect to see many more decisions by the ECtHR finding violations of

Article 13 of the ECHR

taken with Article 3 against France. It must follow that it is not being contended that the procedures that are in place for the handling and consideration of asylum applications and appeals in the detained priority procedure are not such as to obviate a real risk of refoulement.

[134]It follows that, if the detained priority procedure works as it should (which is explained above), the mere fact that constrained timescales apply and/or that an asylum application must be made in the French language and/or that, unless an NGO is able to assist, any interpreter is at the expense of the applicant, is not enough.

[135]I turn to consider the evidence relied upon on the claimant’s behalf about what happens in practice. Heavy reliance is placed upon the statements listed at [11] above; in particular, the statements of Ms. Feutrier-Cook, Mr. Ficek and Ms. Lachal and the email from Ms. Sebtaoui. Before turning to consider their evidence about what happens in practice, I will first make a general observation about their evidence, as follows: i) They all said that appeals to the CNDA are non-suspensive for asylum claimants in the priority procedure and that they may therefore be returned to their countries of origin once OFPRA has rejected their asylum application and even if they have appeals pending before the CNDA. ii) In this regard, there is an important omission from their statements. They did not mention that removals cannot take place without an expulsion order and that, if the expulsion order is challenged, until the Administrative Court has made a decision on the challenge or that the judge hearing the challenge against the expulsion decision considers whether expulsion would be in breach of an individual's right not to be subjected to torture or inhuman or degrading treatment or punishment. iii) It may be that the explanation for the omission lies in the terms in which they were requested to make their statements. For example, they may have been asked to give evidence about the priority procedure, which would explain why they have limited their comments to the priority procedure. Nevertheless, the omission is an important reason for reducing the weight I gave to their other evidence (for example, concerning what happens in practice or the statistical evidence or the claimant's situation if removed to France, discussed below).

[136]In their joint statement, Ms. Feutrier-Cook and Mr. Ficek said, inter alia, that, in practice, all of the deficiencies outlined within I.M. v France persist. Mr. Ficek said in his second statement ([4]) that he has been working for France d’Asile since 2003 and that he is now head of its asylum department. I recognise that France d’Asile is a respected organisation and that Mr. Ficek is well placed to give relevant evidence.

[137]Ms. Feutrier-Cook and Mr. Ficek said, inter alia, that those claiming asylum in France within the priority procedure do not always have access to an interpreter for the majority of the process following the initial asylum interview conducted by OFPRA; applicants are consequently prejudiced because they are often not made aware of the progress of their application in their own language following the initial asylum interview; they said that an applicant will have “a minimal amount of time” to recall the entire account during the initial asylum interview, commonly lasting less than half an hour; and that applications are typically refused due to the fact that the accounts provided by the applicants are said to provide insufficient detail. However, these problems are of a similar type to those described by CPT before the ECtHR in I.M. v France (summarised at [125.iv] above).

[138]As the judgment in I.M. v France was before the ECtHR in M.V. and M.T. v France, problems of this sort were known to the ECtHR in M.V. and M.T. v France, including the fact that asylum applications had to be made in the French language and that any assistance with an interpreter at the application stage was at the applicant’s expense. It had the judgment in I.M. v France before it and was therefore aware of the reasons that the Court gave in that case that for finding that there had been a violation of

Article 13 of the ECHR

taken together with Article 3. The ECtHR in M.V. and M.T. v France nevertheless found that there had been no violation of

Article 13 of the ECHR

taken together with Article 3, although, of course, I bear in mind that the petitioners in M.V. and M.T. v France were in the non-detained priority procedure. Nevertheless, if the deficiencies outlined in I.M. v France were experienced on a scale sufficient to rebut the evidential presumption of compliance, one would expect to see many more decisions of the ECtHR finding violations of Article 13 combined with Article 3. This is simply not the case.

[139]Furthermore, the UNHCR has not made any recommendation to suspend returns under the Dublin Regulation to France. I acknowledge (and as Mr Husain submitted) that this is not determinative as Lord Kerr said in EM (Eritrea) ([74]) that assumptions should not be made about the lack of any such recommendations. However, Lord Kerr also said that:

“… it is of obvious significance that UNHCR did not make any such proposal” and that the “UNHCR material should form part of the overall examination of the particular circumstances of each of the appellant's cases, no more and no less.”

[140]Importantly, and as I have said above, there is no evidence at all that France has either removed any individuals in breach of its international obligations or that individuals who have been refused protection in France have difficulty making applications to the ECtHR for an interim protective measure under rule 39.

[141]The claimant also relies on some statistics to establish his case that he faces a real risk of refoulement, as follows: i) The statistics reproduced at Annex B to this judgment. According to footnote 35 of the claimant's skeleton argument, these are from the 2012 annual report of an (unspecified) NGO and provided by Ms. Marion Guemas, Coordinatrice Juridique, France Terre d’Asile. According to the statement of Ms. Lachal ([13], C166), they are the statistics of the five NGOs listed at [42.ii] above. ii) The claimant’s skeleton argument ([20(7)]) gives statistics according to which the success rates for asylum applications decided under the normal procedure, in the CNDA and the priority procedure are, respectively, 12.8%, 14.5% and 4%, the source for which is said to be OFPRA’s annual report for 2013, supplied by Ms. Guemas. The success rate of asylum applications under the detained priority procedure is said to be 0.6% the source for which is the document mentioned at i. above. iii) The evidence of Ms. Lachal in her statement (at [13]) that there is a 99.5% chance of refusal of asylum claims by OFPRA in the detained priority procedure, from which it follows that her evidence is that the success rate is 0.5%. iv) In the joint statement (at [3]) it is said that only 0.6% of these who claim asylum within the priority procedure in France are granted refugee status or subsidiary protection.

[142]The key statistic relied upon is the 0.5%-0.6% success rate for those in the detained priority procedure which essentially comes from the document at Annex B, the joint statement and Ms. Lachal's statement.

[143]In my view, there are a number of reasons why the statistical evidence upon which the claimant seeks to rely is unsatisfactory, as follows: i) A full copy of the 2012 annual report has not been produced. As Sales J said in Elayathamby ([44]), any set of statistics may be open to differing interpretations and explanations for the patterns they show. In addition, the total of 73 under the column for the year 2012 does not tally with the figure of 1,140 given as the total number of cases. ii) Evidence from local NGOs carries less than weight than statistical evidence from reports from bodies such as the UNHCR, CPT etc. I respectfully agree with the reasoning of Sales J in Elayathamby ([56]) to the effect that local organisations do not have the resources nor the general perspective on acceptable standards of protection for asylum seekers which international bodies such as UNHCR, UNCAT, CPPT etc have. iii) A low acceptance rate does not of itself mean that there are significant procedural problems leading to a real risk of refoulement. For example, in his judgment in Elayathamby, Sales J drew attention to the fact that the UNHCR did not then take issue with the “extremely low recognition rate” for Cyprus because the huge majority of cases were simply not refugees, whereas it raised concerns about the low recognition rate in Greece ([50]-[51]). iv) In any event, the fact is that a success rate of 0.5% or 0.6% is significantly better than the statistics for Greece at the time M.S.S. was decided. According to [126] of M.S.S, in 2008, the acceptance rate in Greece at first instance was 0.04% for refugee status (11 people) and 0.06% for humanitarian or subsidiary protection (18 people) (Source: UNHCR, Observation on Greece as a country of asylum, 2009).

[144]Accordingly, the statistics do not establish that there are procedural problems in practice such that the significant evidential presumption of compliance is rebutted leading to a real risk of refoulement.

[145]So far, I have not taken into account the Bulletin and the decision of the French Council of State and whether these are being followed in practice. Even without doing so, I have concluded that the defendant was entitled to conclude at [57] of the decision letter that the evidence relied upon on the claimant’s behalf does not come close to rebutting the significant evidential presumption that France complies with its international obligations. I have reached the same conclusion myself. It follows that, if an individual is removed to France under the Dublin Regulation, there is in general no real risk of refoulement by France in breach of its obligations, even if the individual’s asylum application is examined under the detained priority procedure. The remedy for any procedural and other problems or aberrations experienced in an individual case is to make an application to the ECtHR under rule 39 for an interim protective measure after exhausting domestic remedies in France.

[146]Accordingly, it is not necessary to decide whether the Bulletin and the decision of the French Council of State are being followed in practice. However, I will nevertheless go on to consider the evidence in that respect.

[147]If the recommendation in the Bulletin and the decision of the French Council of State of 30 July 2014 referred to in the letter dated 18 September 2014 from the UNHCR are followed in practice, this will mean that those asylum seekers whose asylum applications “[do] not appear to be manifestly unfounded” and “therefore require further consideration” are examined under the normal procedure with a suspensive appeal to the CNDA as well as a suspensive right of appeal against any expulsion order. It will mean that only those who asylum claims appear manifestly unfounded will be examined under the priority procedure.

[148]I have considered the fact that the UNHCR states in its letter dated 13 May 2014 ([48] above) that “no significant measures” had been introduced into the French asylum system since the judgment in I.M. v France. Unfortunately, neither of the letters from the UNHCR mentions the Bulletin, although they post-date the Bulletin. Given its unique position, it is likely to be the case that the UNHCR was aware of the Bulletin, although this is speculation on my part. The letter from the claimant's representatives to the UNHCR to which the UNHCR was replying has not been disclosed. It is therefore not known whether the UNHCR was replying to an enquiry, for example, as to whether any legislative measures had been introduced or whether the enquiry concerned whether there had been any change in practice following I.M. v France. A response that “no significant measures” had been introduced to an enquiry as to whether any legislative measures had been introduced does not tell us anything about whether there has been any change in practice following the issue of the Bulletin. The UNHCR’s letter dated 18 September 2014 does not repeat the view that “no significant measures” had been introduced. This may be because the UNHCR no longer held the view that no significant measures had been introduced in the light of the decision of the French Council of State that was made between its letter of 13 May 2014 and its letter dated 18 September 2014 and to which it referred in its later letter. I do not know because the letters to the UNHCR have not been disclosed.

[149]I have to decide this case on the material that has been placed before me. In my view, the opinion of the UNHCR in the letter dated 13 May 2014 that “no significant measures” had been introduced is not sufficient to establish that the Bulletin and the decision of the French Council of State are not being followed in practice, for the reasons given above.

[150]In their joint statement, Ms. Feutrier-Cook and Mr. Ficek said, inter alia, that the Bulletin is not binding. In his second statement, Mr. Ficek said that OFPRA continues to deem applications made in detention centres as fraudulent and that this practice has continued since the judgment in I.M. v France. However, I make the following observations: i) The mere fact that the Bulletin is not couched in words which suggest it was intended to impose a binding obligation to follow it does not mean that it is not being followed in practice. There may well be good reasons why the Bulletin was not couched in language which attempts to impose a binding obligation, bearing in mind the addressees. ii) Whilst the joint statement and Ms. Lachal’s statement pre-date the decision of the French Council of State of 30 July 2014 referred to in the letter dated 18 September 2014 from the UNHCR, Mr. Ficek did not mention it in his second statement dated 7 November 2014. This may or may not be because he was unaware of the decision. There may be other good reasons for the omission. Nevertheless, the omission reduced the weight I gave to his evidence. iii) Even taking at face value Mr. Ficek’s evidence that OFPRA continues to deem applications made in detention centres as fraudulent, it does not follow that OFPRA’s view that the application is fraudulent leads to the individual concerned being assigned to the priority procedure contrary to the terms of the Bulletin, as opposed to it being a reason to disbelieve the basis of the asylum claim. iv) In any event, Mr. Ficek did not mention what happens in practice if the individual concerned challenges the decision to place him in the priority procedure contrary to the terms of the Bulletin and the decision of the French Council of State before the Administrative Court. It is clear from Ms Lachal’s statement that a decision to place a person in the priority procedure can be challenged to the Administrative Court (see [19] above).

[151]Accordingly, there is nothing at all significant to detract from the Bulletin and the decision of the French Council of State. Indeed, the fact that the Bulletin was issued and the decision of the French Council of State was made is further evidence that France complies with its international obligations. It is evidence that supports the significant evidential presumption of compliance. The defendant was therefore fully entitled to conclude (at [20]) that there was no evidence to show that the Bulletin was not being followed in practice.

X. Ground 1: Assessment of the individual question

[152]I have set out the claimant's account of his experiences in France in the order of events at [9] above.

[153]In his witness statement, the claimant said, inter alia, that whilst he was in the detention centre, the French police took him to the Sudanese Embassy to issue him with a travel document; that three Arab-speaking French policemen accompanied him to the Embassy and had a conversation with the Ambassador; and that they laughed at him and said:

“You are going to Sudan”

. This is supported by Miss Potter’s statement. She said that she was told by officers jokingly that “even if he appeals now he is still going back”. According to the chronology in her statement, this must have taken place some time between the refusal decision by OFPRA on 2 March 2012 and the date on which the claimant filed his non-suspensive appeal to CNDA. At this point, he had an outstanding suspensive appeal against the expulsion order. He could not have been removed until that appeal was decided. The fact that jokes were made to the effect that the claimant “is still going back” does not mean that there was an intent to disregard the law. In any event, the outcome of the appeal before the Administrative Court judge was not informed by the view expressed by the three police officers and so the fact that they expressed certainty as to the outcome is of no significance.

[154]Mr Husain submitted that the claimant's circumstances were closer to the I.M. v France end of the spectrum than the M.V. and M.T. v France end of the spectrum. In essence, he drew attention to the fact that the claimant had had to submit his asylum application within five days in the French language without the assistance of an interpreter; he was interviewed by OFPRA seven days later; his asylum claim was refused two days later; his appeal to the CNDA was non-suspensive; and he was not given copy of his interview notes or a copy of OFPRA’s decision.

[155]I reject Mr Husain’s submission. The claimant’s circumstances are nowhere near the I.M. v France end of the spectrum for the following reasons: i) All of the arguments advanced by Mr Husain (save in relation to the fact that he was not given a copy of his interview notes or a copy of OFPRA’s decision) are in fact directed at the detained priority procedure itself and yet it is accepted on the claimant's behalf that examination of an asylum application under the detained priority procedure is not in itself enough to show that the process for examining a claim in the priority procedure will be so defective as to lead to a real risk of refoulement. ii) The fact that claimant was not given a copy of his interview notes or a copy of OFPRA’s decision is an aberration because Article R. 723-1-1 of CESEDA provides that OFPRA must provide a copy of its report and its decision to “interested parties”. Aberrations are not enough. iii) The petitioner in I.M. v France was arrested on the day of his arrival in France, whereas the claimant was encountered by the police on 9 February 2012, over a month after his arrival at the end of December 2011. Mr Husain submitted that, as the claimant had been living in a derelict building that was due for demolition (as per the statement of Ms. Potter), it had not been shown that he had had an opportunity to obtain documentary evidence to establish his claim. However, it is not for the defendant to show that the claimant had had an opportunity to obtain documentary evidence. This is an argument that the claimant ought to have raised in challenging the decision of OFPRA and the expulsion order and in his rule 39 application to the ECtHR. iv) The ECtHR accepted the evidence of the petitioner in I.M. v France that he had expressed his wish to claim asylum from the day of his arrival in France, whereas the claimant “first expressed his wish to claim asylum” on 15 February 2012, i.e. at least six weeks after he arrived in France at the end of December 2011 (this being his own declaration according to the judgment of the Administrative Court judge, C209), six days after he was encountered by the police on 9 February 2012, and five days after the expulsion order was issued against him on 10 February 2012. v) The petitioner in I.M. v France was at risk of removal even before his asylum application was recorded by the French authorities. In contrast, in the instant case, the claimant's suspensive appeal against the expulsion order protected him from removal through the period which covered the making of his asylum application, his interview with OFPRA and the refusal of his asylum claim by OFPRA right up until 21 March 2012, the date of his hearing before the Administrative Court judge. At the date of his release from detention by the French authorities, his only suspensive appeal had been rejected. Notwithstanding this fact, the French authorities released him because the maximum period of his detention had been reached and (it would seem) a flight to Sudan could not be arranged in time. He could have attended his hearing before CNDA but chose not to do so. He chose to leave France and travel to Birmingham where he claimed asylum. He was at large in France and had not been given a ticket to travel to Sudan. vi) Mr Husain drew attention to the brevity of the reasoning of the judgments of the Administrative Court judge and the CNDA in the claimant's case. However, the ECtHR did not find a breach of

Article 13 of the ECHR

taken together with Article 3 in M.V. and M.T. v France, notwithstanding that it found that the removal of the petitioners to Russia would be in breach of

Article 3 of the ECHR

and that insufficient reasons had been given for rejecting the petitioners two requests for re-examination of the decision on their asylum claims. Indeed, it is interesting to note what the ECtHR said on the issue of sufficiency of reasoning. It said ([43]): a) OFPRA had rejected the initial asylum claim “simply because [the petitioners’] statements were not detailed”. b) CNDA did the same because it considered that neither the documents nor the statements of the petitioners “allowed to take as established the facts reported and the occasional aid to an uncle could not justify the alleged fears”. c) “At the first request for a review, the instances of asylum confined themselves to stating that the allegations were not established” and that the “police summons produced [did] not set out the reasons behind their enactment”. This means that these were the sole reasons given by OFPRA for rejecting the first request for a review. d) In relation to the second request for a review, OFPRA said that the additional documents were not admissible. In turn, the Administrative courts restricted themselves “to referring to the decisions of the bodies of asylum to avoid the possibility alleged by the petitioners upon return”. This means that the second request for a review was refused by OFPRA on the sole ground that the additional documents were not admissible and the Administrative Court referred to OFPRA's decisions to reject the petitioners’ claims that they were at risk on return. I have to say that, in the claimant’s case, the judgment of the CNDA at least simply cannot be compared to the above. The reasons given by the judge in the claimant's case were detailed, in comparison to M.V. and M.T. v France (see summary at [9.xii] above). Yet the brevity of the reasoning in M.V. and M.T. v France did not lead to a finding of a breach of Article 13 taken together with Article 3.

[156]In any event, I agree with Mr Manknell that the real issue is what will happen if the claimant returns to France and makes another application for asylum.

[157]The claimant relies upon the following evidence from the witness statement from Ms. Lachal, the joint statement from Ms. Feutrier-Cook and Mr. Ficek and the second statement from Mr. Ficek: i) All of them said that the claimant will be detained upon arrival as a returnee under the Dublin Convention because this is common practice. ii) All of them said that, if the claimant returns to France and makes an asylum claim, this will be known as a “formal re-examination”. iii) All of them said that he will be re-allocated to the priority procedure. Mr. Ficek said in his second statement that OFPRA continues to deem applications made in detention centres as fraudulent and that this practice has continued since the judgment in I.M. v France. iv) Ms. Lachal said that there will be a higher than 95% chance of the claimant’s further asylum claim being refused by OFPRA. Mr. Ficek said in his second statement that the chances of the claimant being granted asylum were still extremely low, even with the report of Mr. Verney. Ms Feutrier-Cook and Mr Ficek said in their joint statement that the claimant stands no chance at all of being granted asylum as a result of a re-examination and that re-examined asylum applications are routinely and rapidly refused by OFPRA, especially in instances where the applicant is still unable to provide some form of official documentation relating to his or her identity, from their country of origin. v) Ms Feutrier-Cook and Mr Ficek go on to say in their joint statement that the claimant would not be granted asylum were he to return to France solely with an expert report as evidence of his country of origin and ethnicity. vi) Commenting on how the French authorities would be likely to treat the report of Mr Verney, Mr Ficek said in his second statement that OFPRA does not publish any policy relevant to determining an applicant’s ethnic identity. However, he said that, based on his experience of assisting asylum seekers to make asylum claims, the chances of the claimant being granted asylum are still extremely low for two reasons. First, that OFPRA and the appeal courts in practice will only accept evidence of identity including ethnic identity which originates from the country of origin. Without such evidence, he could not see that the claim for re-examination of the claimant’s asylum claim insofar as it was based on his claim to be Tunjur would stand any additional prospect of success. Secondly, even if the claimant established that he is Tunjur, this would probably not be sufficient by itself to satisfy OFPRA and the appeal courts that he requires international protection. They would, in addition, need to be satisfied that he lived in the Darfur region and could not relocate elsewhere in Sudan. vii) All of them said that the claimant would not have a suspensive right of appeal against the refusal by OFPRA. Ms Feutrier-Cook and Mr Ficek said in their joint statement that there is a very high likelihood of the claimant being returned to Sudan at this stage.

[158]I have already dealt with the statistical evidence at [143] above. There is no reason to give Ms. Lachal’s evidence that there is a higher than 95% chance of rejection in a re-examination any more weight. I have dealt with Mr. Ficek’s evidence that OFPRA continues to deem applications made in detention as fraudulent. I have said ([135] and [150] above) that I have reduced the weight I gave to the evidence given by Ms Lachal, Ms Feutrier-Cook and Mr Ficek in relation to matters relevant to whether the significant evidential presumption of compliance is displaced. In reaching that view, I have also taken into account the following in relation to their evidence about the claimant's particular situation upon return to France under the Dublin Regulation: i) All of the statements read as if the claimant is entitled to a guarantee that he will be granted protection in France. There can be no guarantees. ii) If it is the case that OFPRA and the French courts will only accept documentary evidence from the country of nationality as sufficient to establish ethnic origin and place of origin and/or they consider the possibility of relocation even if they accept that an individual belongs to a non-Arab Darfuri tribe, these matters should be established by expert evidence. No such expert evidence has been produced. The procedure in Part 35 of the CPR has not been followed. This reduces the weight that I am prepared to give to it, although I make it clear that I do not disregard the evidence. In any event, I have rejected the argument based on Adan and Aitseguer.

[159]If the claimant is held upon arrival in France as someone who is being returned under the Dublin Regulation, it is open to him to apply for temporary residence as an asylum seeker, relying upon the report of Mr. Verney. At this point, the Préfet should apply the Bulletin and the decision of the French Council of State dated 30 July 2014 and decide whether the asylum claim is manifestly unfounded. He is now known to the NGOs who have provided him with witness statements. If the Bulletin and the decision of the French Council of State are not applied, he will be able to appeal to an Administrative Court judge against the decision to place him within the priority procedure as well as any expulsion order. In this appeal, he should be able to rely upon his report from Mr. Verney, the Bulletin and the decision of the French Council of State.

[160]In its letter dated 18 September 2014, the UNHCR said that, as per current practice, an asylum seeker against whom an order to leave has been issued and who is seeking a re-examination of his case while in a detention centre would be treated under the priority procedure. However, this does not apply because the UHNCR has also said that expulsion orders are valid for one year. Accordingly, the expulsion order that was issued against the claimant when he was in France will have expired.

[161]In any event, as I have said, the claimant will be able to appeal against any decision to place him within the priority procedure.

[162]If the claimant’s asylum application is refused by OFPRA simply because he has not produced documentary evidence from Sudan to establish his ethnic origin and place of origin, he can appeal to CNDA. If he is in the priority procedure at this point notwithstanding that he has the report from Mr. Verney, his appeal to the CNDA will be non-suspensive.

[163]However, he cannot be removed unless a new expulsion order is issued against the claimant. If one is issued, he will be able to challenge it. Any appeal against the expulsion order will be fully suspensive and he will be able to rely upon Mr. Verney’s report in that appeal, as I have said.

[164]If he loses the appeal against the expulsion order and is facing a risk of removal before the decision on his appeal to the CNDA, he will be able to apply to the ECtHR under rule 39 for a protective interim order. The judgment in M.V. and M.T. v France shows that the ECtHR will consider new documentary evidence.

[165]Mr Husain submitted that unfairness in the procedures relating to the claimant's previous asylum claim and appeals in France will feed into his next application. He relied upon the judgment of the Court of Appeal in R (RLC) v Secretary of State for the Home Department

[2004] EWCA Civ 1481

to the effect that unfairness in the examination of an asylum application may not be curable on appeal and, referring to Secretary of State for the Home Department v Thirukumar [1989] IMM AR 402, that asylum decisions are of such moment that only the highest standards of fairness will suffice. However, these decisions concern asylum claims examined domestically in the United Kingdom. If it is accepted that this applies also to removals under the Dublin Regulation, in that, this country is obliged in all cases to evaluate whether an individual's previous asylum claim had been examined fairly notwithstanding that the evidential presumption of compliance is not displaced, it has the potential of bringing all Dublin removals to a halt. I reject the submission. In any event, in the claimant's particular case, there is nothing about the way his case was handled in France that raises any significant defects of process when compared with I.M. v France and M.V. and M.T. v France.

[166]Considering the claimant’s reasonably foreseeable circumstances in the future against the backdrop of the evidential presumption of compliance, I have concluded that the defendant was fully entitled to conclude (at [57]) there is no real risk of the claimant being refouled to Sudan by France in breach of his right to asylum and his right not to be subjected to torture or inhuman or degrading treatment or punishment. I have reached the same conclusion myself.

[167]In considering the general question and the specific question, I have taken into account two documents that were not before the defendant when she made her decision on 30 June 2014, i.e. the letter from the UNHCR dated 18 September 2014 and the second witness statement from Mr. Ficek. This has not prejudiced the defendant, as I have decided the issues against the claimant having taken these documents into account. In any event, Mr Manknell was able to address me on these documents at the hearing. As for Mr, Manknell's objections in relation to some of the evidence from the local NGOs, I have (for pragmatic reasons) taken all the evidence into account, giving it such weight as I consider appropriate.

[168]I record that I received the claimant's note dated 14 January 2015 drawing my attention to MM (Darfuris) Sudan CG

[2015] UKUT 10 (IAC)

XI. Assessment of Ground 2 (Duty to investigate):

[169]Mr Husain referred me to Gashi, in which the Court of Appeal quashed a third country certificate in respect of the removal to Germany of two individuals of Albanian ethnicity who were from Kosovo because the defendant could not demonstrate that adequate inquiries had been made that would explain the disparity in outcome of claims from ethnic Albanians in the United Kingdom as compared to Germany. In the United Kingdom, they were universally recognised as refugees whereas in Germany only a tiny percentage were given refugee status and many were returned to the Federal Republic of Yugoslavia. The Court of Appeal held that the significant differences in the proportion of Kosovan asylum seekers returned by Germany and other countries should have put the Secretary of State on notice to make further enquiries. The duty of inquiry where evidence calls for an explanation is a corollary of the duty to apply anxious scrutiny (per Buxton LJ). It is a basic duty of a defendant in public law to acquaint himself with the basis facts (Secretary of State for Education and Science v Tameside Metropolitan Borough Council

[1977] AC 1014

[170]It is the claimant's case that the duty of inquiry arises because of the disparity in outcomes of claims from Sudanese nationals who were non-Arab Darfuris made in the United Kingdom as compared with France. For this purpose, Mr Husain compared the figure of 100% for the United Kingdom and the figure of 0.6% for France.

[171]Mr Manknell cautioned me against relying upon Gashi, given its age and the fact that much has happened, in particular, in relation to the Dublin Regulation, since then.

[172]I do not need to decide whether Gashi is still good law. I have already dealt with the statistical evidence relied upon by the claimant at [143] above. There are also other difficulties with the statistics relied upon by the claimant in relation to ground 2. The claimant’s statistics reproduced at Annex B show a figure of 10% for Sudanese asylum seekers in detention. Whilst this may well relate to those detained in the normal procedure, it is not clear how this group relates to the group included for the 0.6% figure. This further demonstrates that the statistics produced on the claimant's behalf should be accorded little weight.

[173]Importantly, it has to be said that Mr Husain is not comparing like for like. The figure of 100% for the United Kingdom relates only to those who have been accepted as being non-Arab Darfuri Sudanese nationals, regardless of whether their claims were examined under the United Kingdom’s fast track process or not, whereas the figure of 0.6% that he seeks to rely upon (even if this Court should accept is reliable, which is not the case) is for all asylum seekers dealt with in the detained priority procedure, of whatever nationality and irrespective of credibility.

[174]Accordingly, even if Gashi survives, I reject ground 2. The Defendant did not err by failing to investigate the fairness of the priority procedure in France. Decision The claim is therefore dismissed. ANNEX A 184. Paragraphs 3, 4 and 5 of Part 2 of Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (the 2004 Act):

“3.(1) This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made an asylum claim or a human rights claim may be removed – (a) from the United Kingdom, and (b) to a State of which he is not a national or citizen. (2) A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place – (a) where a person’s life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion, (b) from which a person will not be sent to another State in contravention of his Convention rights, and (c) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention. 4. Section 77 of the Nationality, Immigration and Asylum Act 2002 (c41) (no removal while claim for asylum pending) shall not prevent a person who has made a claim for asylum from being removed – (a) from the United Kingdom, and (b) to a State to which this Part applies; provided that the Secretary of State certifies that in his opinion the person is not a national or citizen of the State. 5.(1) This paragraph applies where the Secretary of State certifies that – (a) it is proposed to remove a person to a State to which this Part applies, and (b) in the Secretary of State’s opinion the person is not a national or citizen of the State. (2) The person may not bring an immigration appeal by virtue of section 92(2) or (3) of that Act (appeal from within United Kingdom: general). (3) The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act (appeal from within United Kingdom: asylum or human rights) in reliance on – (a) an asylum claim which asserts that to remove the person to a specified state to which this Part applies would breach the United Kingdom’s obligations under the Refugee Convention, or (b) a human rights claim in so far as it asserts that to remove the person to a specified State to which this Part applies would be unlawful under section 6 of the Human Rights Act 1998 because of the possibility of removal from that State to another State. (4) The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly founded. (5) Sub-paragraph (4) applies to a human rights claim if, or in so far as, it asserts a matter other than that specified in sub-paragraph (3)(b).” (a) from the United Kingdom, and (b) to a State of which he is not a national or citizen. (2) A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place – (a) where a person’s life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion, (b) from which a person will not be sent to another State in contravention of his Convention rights, and (c) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention. (a) from the United Kingdom, and (b) to a State to which this Part applies; provided that the Secretary of State certifies that in his opinion the person is not a national or citizen of the State. (a) it is proposed to remove a person to a State to which this Part applies, and (b) in the Secretary of State’s opinion the person is not a national or citizen of the State. (2) The person may not bring an immigration appeal by virtue of section 92(2) or (3) of that Act (appeal from within United Kingdom: general). (3) The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act (appeal from within United Kingdom: asylum or human rights) in reliance on – (a) an asylum claim which asserts that to remove the person to a specified state to which this Part applies would breach the United Kingdom’s obligations under the Refugee Convention, or (b) a human rights claim in so far as it asserts that to remove the person to a specified State to which this Part applies would be unlawful under section 6 of the Human Rights Act 1998 because of the possibility of removal from that State to another State. (4) The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly founded.

(b) ”

THE EU CHARTER 185. Article 4:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. 186. Article 18: “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’).” 187. Article 19.2: “No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment”. 188. Article 47: “Everyone whose rights and freedom guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.” 189. Article 52.3: “In so far as this Charter contains rights which correspond to rights guaranteed by [the ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”

ANNEX B (English translation) “Official Bulletin of the Ministry of the Interior Ministry of the Interior - General Direction of foreigners in France - Asylum services - Department of right to asylum and to protection Information note of 5th December 2013 relating to asylum applications presented by aliens in administrative detention in view of their expulsion. Follow up actions of the ECHR and CJEU. NOR: INTV1327386N Summary:In order to take into account case law of the European Court of Human Rights and the Court of Justice of the European Union on asylum applications in detention, prefects are invited, when OFPRA indicates that a request doesn’t seem manifestly unfounded, to put an end to the detention and allow the alien to go to the prefecture in order to carry out the formalities inherent to his capacity as claimant. The Minister of the Interior to the Prefect of Police; Distinguished prefects (metropole and overseas). In connection with several judgments concerning France (ECHR 20 September 2007, Sultani v. France No.45223/05, February 2, 2012, IM v France, No.9152/09; 6 June 2013, ME v France No.50094/10), the European Court of Human Rights has considered the compatibility of the procedure for examining an asylum application of a foreign national placed in administrative retention in view of his expulsion (art.L.551-3, R.553-15 to R.553-17, R.723-1 and R.723-2 of the Code on the entry and stay of aliens and the right to asylum) with the obligations arising from the European Convention for the Protection of Human Rights and Fundamental Freedoms: article 13 (right to an effective remedy) combined with article 3 (prohibition of inhuman or degrading treatment). In those cases, the Court has not questioned the legitimacy and the interest of the existence of a specific procedure for asylum applications in retention, but has essentially sentenced against the “automatic” character of the implementation of the accelerated procedure for the examination of an asylum application presented in retention “unrelated to the circumstances of the case, and to the content of the application and its foundation”. In addition, in a decree of May 30th 2013, Arslan, C-534-11, the Court of Justice of the European Union (CJEU) has confirmed the need to avoid any kind of automatism in the retention of a foreign national awaiting expulsion, who has presented, after his placement in an administrative retention center an application for asylum. In particular, the CJEU ruled that the law of the European Union does not oppose to the interested person to be held in retention “if it appears, after a study in each case and of all relevant circumstances, that the application was introduced for the sole purpose of delaying or compromising the enforcement of the return decision and that it is objectively necessary to maintain the measure of retention so as to prevent the interested person from avoiding his return”. Finally the 2013/33/UE Directive of the European Parliament and Council of 26 June 2013 defining standards for the reception of applicants for international protection (recast) provides new and specific provisions on detention of asylum seekers (article 8 to 11) that prohibit this automaticity, while allowing the keeping in detention of a foreign national pending deportation, who presented after his detention, an asylum application when there are “reasonable grounds to believe that the applicant has presented the application for international protection for the sole purpose of delaying or preventing the execution of the decision to return”. A bill will soon be submitted to Parliament in order to ensure conformity of the French law to these jurisprudential solutions and to implement this directive. Pending the implementation of this new system, it is recommended to comply with this case law and to stop the automatic nature of the examination of an asylum application presented in detention under the accelerated procedure above mentioned. Therefore I invite you, concerning asylum applications presented in detention by persons subject to an obligation to leave French territory, to now proceed according to the following transitional measures adopted in accordance with the Director General of ‘French Office for the Protection of Refugees and Stateless Persons’ (OFPRA). 15th January 2014 – Interior 2014-1 Page 1 Official Bulletin of the Ministry of the Interior First, the head of the detention center, or, where appropriate, the head of the detention area (article R.553-15 of CESEDA) must systematically and immediately inform the prefect who decided on the placement in detention, of the submission of an asylum application in the manner provided in the second paragraph of Article R.723-1 of CESEDA. Secondly, it is recalled that, in accordance with Article L.551-3 of the CESEDA, this application may not be made after the expiry of a period of 5 days following the notification of this right. The asylum application is transmitted in the usual conditions to the OFPRA, who will have to decide within 96 hours on the request (Article R.723-3) and the expulsion procedure cannot in any event be put to execution before the office has ruled. Finally, three situations may arise: 1. The General Director of OFPRA has granted the asylum application and gives the benefit of protection (refugee status or subsidiary protection): In this case and according to the usual rules, detention shall be immediately ended and the alien is invited to visit prefecture in order to fulfil the formalities for the grant of a residence permit on the basis of the international protection granted. 2. The General Director of OFPRA refuses asylum: In this case, the measure of expulsion can be executed, subject to the exercise by the applicant of litigation remedy provided for in Article L.512-1 of CESEDA, which has suspensive character. The appeal brought before the National Court of Asylum against the decision of the OFPRA is not, however, suspensive of the expulsion, since this decision was taken on a priority procedure. 3. The General Director of OFPRA reports to the prefect the asylum application of the person concerned, stating that it does not appear to be manifestly unfounded, and that therefore needs further consideration: In this case, the prefect is invited to put an end the detention and the alien can then be provided with a safe conduct granting temporary immunity from arrest in order to go to the prefecture to carry out the formalities inherent to his capacity as applicant. The request is then dealt with, according to its characteristics in normal procedure or priority procedure. *** 193. For the Minister and by delegation: 194. The Director General of Foreigners in France

ANNEX B

[1]DEREPAS 15th January 2014 – Interior 2014-1 – Page 2” ANNEX C STATISTICS PRODUCED BY THE CLAIMANT (According to footnote 35 of the claimant's skeleton argument, these statistics are from an NGO’s 2012 annual report, based on 1,140 cases, supplied by Marion Guemas, Coordinatrice Juridique, France Terre d’Asile)196. - Asylum seekers in detention centers in 2012

197. 1140 asylum seekers and 9 protections granted (success rate: 0,6%)

198. 11 Sudanese seeked [sic] asylum from a detention centre and 1 statut [sic] of refugee granted (success rate: 10%)

199. - Sudanese in French detention centers 2012-2013 2012 2013 Expulsed

200. To a state member under Schengen proceeding 16 22% 18 20%

201. To a state member under Dublin proceeding 9 12% 6 7%

202. To Sudan 6 8% 2 2% Released

203. Annulment of detention order (court or local authority) 22 30% 41 45%

204. Annulment of the expulsion order (court) 13 18% 10 11%

205. Released at end of maximum detention (45 days) 2 3% 5 5%

206. ECHR 2 3% 4 4%

207. Asylum 1 1% 1 1%

208. Health 1 1% 2 2%

209. Others – Unknown 1 1% 2 2%

210. Home custody 0 x 1 1%

211. Total 73 92

Cited in 1 later judgment

Dudaev & Ors v The Secretary of State for the Home Department 2015