An asylum seeker who lodges an appeal cannot be expelled

(B2) The European Court of Human Rights unanimously condemned France on April 26 for refusing asylum and nearly deporting an Eritrean journalist.

Inconsistent facts?
Aged 28, Asebeha Gebremedhin worked as a reporter-photographer for the independent newspaper Keste Debena before being arrested in 2000. Imprisoned for six months, tortured in particular on the
his editor-in-chief fled abroad, he managed to escape from the prison hospital and arrived, via Sudan, at Paris-Charles de Gaulle airport at the end of June 2005. His application for admission
on the territory, under asylum, was however rejected on July 5 by the French Office for Refugees and Stateless Persons (Ofpra) on the grounds of inconsistency. The next day, a deportation order to
Eritrea is issued by the Ministry of Interior. The summary appeal to the administrative court is rejected. Seized, the European Court of Human Rights immediately informs the
French authorities not to send him back and a provisional residence permit was granted.

No answers the Court...
For the Court, the asylum seeker must be able to have access in the waiting area to a suspensive appeal as of right, "taking into account the risks of ill-treatment or torture which could
follow his expulsion". The Court criticizes above all the French legislation which does not grant suspensive effect to the appeals of people placed in the waiting zones. A violation, according to the
judges of the right to an effective remedy and the prohibition of inhuman or degrading treatment, provided for respectively by Articles 13 and 3 of the European Convention on Human Rights
(ECHR, 26 April 2007, Gebremedhin, application no. 25389/05).

A consequence on Community law?
In doing so, the Court highlights, in our view, a notion that has remained vague in Community law, that of effective remedy. Directive 05/111 of 1 December 2005 (to be transposed before 1
December 2007) gives, on the one hand, the asylum seeker the "right to remain in the Member State pending the examination of the application" but only until the examination of the file in the first instance
(section 7); on the other hand, it leaves the Member States free to settle the question of whether the asylum seeker's appeal has the effect of allowing the asylum seeker to remain in
the Member State pending the outcome of the appeal (Article 39). This decision also illustrates the extensive assessment that certain Member States have of the conditions (the "declarations
inconsistent" in this case) allowing the application of the accelerated procedure (Article 23).

The asylum procedure, Russian roulette!
This process is denounced by certain human rights organizations such as the National Association for Border Assistance for Foreigners, which brings together almost all the associations
of human rights. The asylum procedure at the border, "hardened to the extreme" in recent years, is a real "Russian roulette" underlines theAnafe. This case
“is neither isolated nor anecdotal”. “So last March a Chadian asylum seeker was sent back by France and found himself immediately on leaving
the airport in police custody for 28 days". "Except to violate the decision of the Court, France will now have to devote a suspensive effect to appeals
deposited by foreigners held in the waiting zone who run the risk of ill-treatment in the event of being sent back to their country of origin,” the organization adds.