Information Note on the Court’s case-law No. 96

April 2007

Gebremedhin [Gaberamadhien] v. France - 25389/05

Judgment 26.4.2007 [Section II]

Article 13

Effective remedy

Lack of a remedy with automatic suspensive effect against an order refusing an asylum seeker held in an airport waiting area entry to French territory and requiring his removal: violation

Article 5

Article 5-1-f

Prevent unauthorised entry into country

Continued detention of an asylum seeker in an airport waiting area following an interim indication by the Court under Rule 39 of the Rules of Court that he should not be removed to his country of origin: no violation

Facts: The applicant is an Eritrean national. In 1998 he and his family were displaced from Ethiopia to Eritrea, where he worked as a reporter and photographer for an independent newspaper. In 2000 he and the newspaper’s editor-in-chief were arrested, apparently on account of their professional activities. Both men were imprisoned for several months. In September 2001 the applicant fled the country. He was arrested and questioned about his friend, and was subjected to ill-treatment. He was imprisoned for six months before managing to escape from the prison hospital, where he had been transferred after contracting tuberculosis. He fled to Sudan from where, believing his life to be in danger, he travelled on to South Africa. Using a Sudanese passport in a different name and without any travel papers, he arrived at Charles de Gaulle airport in Paris. On 1 July 2005 he applied for leave to enter French territory in order to lodge an application for asylum with the French authorities. He was placed in the airport’s waiting area. On 5 July 2005, after interviewing the applicant, the French Refugees and Stateless Persons Agency (OFPRA) issued the opinion that the applicant should not be admitted to France on account of inconsistencies in his claims which suggested that he had tried to falsify his past. The following day the Interior Ministry refused the applicant admission to French territory on grounds of asylum and gave directions for his removal to Eritrea or any other country where he might be legally admissible. If the applicant had been granted leave to enter the country, he would have been issued with a safe conduct by the border police, authorising him to enter the country and remain there for eight days with a view to lodging an asylum application with the relevant authority under the ordinary-law asylum procedure. Persons who are not admitted are removed immediately.

The applicant made an urgent application to the administrative court requesting leave to enter the country with a view to applying for asylum. He reiterated his claims that he had been persecuted and his life had been threatened. The urgent applications judge rejected his application on the following day, 8 July 2005.

The applicant lodged an application with the European Court of Human Rights, which on 15 July 2005 indicated to the French Government, under Rule 39 of the Rules of Court (interim measures) that it was desirable not to remove him to Eritrea for the time being. The applicant was still being held in the waiting area in Roissy airport. On 20 July 2005 the French authorities, on the basis of the indication from the European Court, granted the applicant leave to enter France and to remain there for eight days in order to visit the prefecture and apply for a temporary residence permit on grounds of asylum. The applicant took the appropriate action and was granted a French residence permit valid for one month, enabling him to lodge an application for asylum with OFPRA. In November 2005 OFPRA granted him refugee status.

Law: Article 13 in conjunction with Article 3 – Under French law, a decision refusing entry to the country acted as a bar to lodging an application for asylum; moreover, such a decision was immediately enforceable, with the result that the person concerned could be removed straight away to the country he or she claimed to have fled. In the instant case, following the application of Rule 39 of the Rules of Court, the applicant had ultimately been given leave to enter the country and had hence been able to lodge an application for asylum with OFPRA, which granted him refugee status. From that point on the Geneva Convention of 28 July 1951 relating to the Status of Refugees stood in the way of his expulsion. The applicant was accordingly no longer a victim of the alleged violation of Article 3.

The Court considered that the applicant’s allegations as to the risk of ill-treatment in Eritrea were sufficiently credible to make his complaint under Article 3 an “arguable” one. The applicant could therefore rely on Article 3 taken in conjunction with Article 13. The latter provision required that foreign nationals whom it had been decided to remove to a country where there was real reason to believe that they ran the risk of being subjected to ill-treatment contrary to Article 3 should have access to a remedy against that decision which had suspensive effect. In the case of asylum seekers who claimed to run such a risk and who had already been granted leave to enter French territory, French law provided for a procedure which met some of these requirements. The procedure did not apply, however, to persons claiming to run such a risk who turned up at the border after arriving at an airport, for instance. In order to lodge an asylum application with OFPRA, foreign nationals had to be on French territory. If they turned up at the border, they could not make such an application unless they were first given leave to enter the country. If they did not have the necessary papers to that effect, they had to apply for leave to enter on grounds of asylum. They were then held in a “waiting area” while the authorities examined whether or not their intended asylum application was “manifestly ill-founded”. If the authorities deemed the application to be “manifestly ill-founded”, they refused the person concerned leave to enter the country. He or she was then automatically liable to be removed without having had the opportunity to apply to OFPRA for asylum. While the individual in question could apply to the administrative courts to have the ministerial decision refusing leave to enter set aside, such an application had no suspensive effect and was not subject to any time-limits. Admittedly, he or she could apply to the urgent applications judge, as the applicant had done without success. However, this remedy did not have automatic suspensive effect either, with the result that the person could also be removed before the judge had given a decision. Given the importance of Article 3 and the irreversible nature of the harm that might occur if the risk of torture or ill‑treatment materialised, it was a requirement of Article 13 that, where a State Party decided to remove a foreign national to a country where there was real reason to believe that he or she ran a risk of this nature, the person concerned must have access to a remedy with automatic suspensive effect (a remedy with such effect “in practice” was not sufficient). The applicant had not had access to such a remedy while in the waiting area.

Conclusion: violation (unanimously).

Article 5(1)(f) – After being placed in the “waiting area” of the airport on 1 July 2005, and before being granted leave to enter France on 20 July, the applicant had been subject to a “deprivation of liberty”. On 15 July the Court decided to indicate to the French Government, under Rule 39 of the Rules of Court, that it would be desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to Eritrea until midnight on 30 August 2005. Accordingly, from 15 July 2005 onwards, the Government could not remove the applicant to Eritrea without being in breach of their obligations under the Convention. However, there was nothing to prevent them from removing him to a different country provided that it was established that the authorities of that country would not send him on to the country referred to by the Court. Accordingly, the applicant’s detention for that purpose, after Rule 39 had been applied, could be said to amount to the “lawful” detention of a person “against whom action [was] being taken with a view to deportation or extradition” within the meaning of Article 5(1)(f) of the Convention. In addition, where, following the application of Rule 39, the authorities had no option but to end the deprivation of the person’s liberty with a view to his deportation, and that implied granting him leave to enter the country, it could prove necessary to keep him in detention for the time strictly necessary for the authorities to verify whether his entry into the country was lawful. This could be said to amount to the “lawful detention of a person to prevent his effecting an unauthorised entry into the country” within the meaning of Article 5(1)(f).

The Government argued that this had been the case in relation to the applicant and the Court saw no evidence to suggest that, between 15 and 20 July, the applicant had been arbitrarily deprived of his liberty. In short, the Court accepted that the applicant’s detention in the “waiting area” after 15 July 2005 had amounted to the “lawful detention of a person to prevent his effecting an unauthorised entry into the country” within the meaning of Article 5(1)(f).

Conclusion: no violation (unanimously).

Article 41 – Non-pecuniary damage: finding of a violation sufficient.

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