5. Appealing against a refusal made by the Ofpra before the CNDA court
If your asylum request is rejected by the Ofpra, you may appeal this decision before the National court of asylum law (CNDA). The appeal must be submitted within 1 month of the date on which you received the decision.
A. The request for legal aid
Although not required, it is advisable to take on a lawyer. You can request legal aid to have a free lawyer. The request must be made to the CNDA, at the “bureau d’aide juridictionnelle”, 35 rue Cuvier 93558 Montreuil-sous-Bois cedex.
You can fill in the legal aid (AJ) form (Cerfa n° 12467*02) or make the request on a blank sheet of paper. This request can be sent by fax to: 01.48.18.43.11. Do not forget to attach a copy of the Ofpra’s refusal decision.
The request for legal aid must be received by the legal aid office within 15 days of notification of the Ofpra decision. After 15 days it is too late to apply for legal aid, even when lodging the appeal. The 15 days start running from the distribution date of the registered letter by the post office (www.csuivi.courrier.laposte.fr/suivi).
The legal aid request is suspensive: the 1-month time limit for making the appeal stops running while the legal aid office examines your request, but will resume starting from the notification of the decision ruling on the legal aid application. In other words, the time limit will resume running from the number of days it was at when the legal aid request was made.
For example: the Ofpra decision is notified on January 1st 2019 and the legal aid application is submitted on January 7th 2019. The time has therefore run for 6 days. If the legal aid office makes its decision granting legal aid on the 1st of February 2019, the deadline for making the appeal starts running again on that day and will therefore be 25 days. As a precaution, it is thus safer to introduce the appeal as quickly as possible or at least within 15 days of the legal aid decision.
The legal aid office will appoint a lawyer to assist you throughout the process. You can also choose your own lawyer if they accept legal aid. You must go see them quickly so that they can request legal aid and make the appeal.
B. The Appeal
The appeal must be written in French and sent to the CNDA by registered letter with delivery receipt or by fax (01.48.18.44.20). You may also submit the file directly on site, at the court clerk’s office.
The appeal must include your first name and surname, date and place of birth, nationality and your address.
It must explain the reasons for which you are appealing the Ofpra decision. It must include responses to the parts contested by the Ofpra, or things you forgot, describe your political activities, provide more information on a timeline contested by the Ofpra, amend incorrect data in the written request or during the interview with the Ofpra, etc.
You can send supporting evidence or documents up to the closing date of the appeal appraisal period indicated on the appointment letter by registered letter with delivery receipt or by fax (01.48.18.44.20). You must note the appeal registration number in your letter.
If you have a lawyer, you should decide together whether or not to add any documents to the appeal. The judges will examine these documents carefully: particularly their date, their author and the means by which they were obtained. The judges will ask you questions about these documents.
You can for example, add documents produces in your country or in France, which confirm your fears due to political activity or a particular situation (proof of militant political activity, religious practice, homosexual relations in France, etc.).
You can also send medical certificates which provide evidence of wounds or scarring. The judges will take these into account.
You must have any documents written in a foreign language translated into French. If you include excerpts of association reports or press articles about the situation in your country, it is preferable to have them translated into French (free translation) or English.
Legal or civil status documents must be translated by accredited translators (paid translation). The judges may take into account free translations but if these documents are important for your case history, it is preferable to have them translated by an accredited translator. You can get a list of accredited translators from the courts or ask associations.
When you submit your appeal, the CNDA will send you a receipt with a file number which will allow you to renew your asylum application certificate.
In theory, the appeal before the CNDA is suspensive: you cannot be sent back to your country before the CNDA has made its decision.
However, in certain cases, this appeal is not automatically suspensive when the right to stay is refused (factsheet 2).
1. Automatic loss of the right to stay in France
The person applying for asylum automatically loses their right to stay in France (and the certificate of asylum application may be refused, withdrawn or its renewal refused) in the following cases:
- if the OFPRA takes a decision of ineligibility (for any reason Ceseda Art. L. 723-11);
- if the person withdraws their asylum application (Ceseda Art. L. 723-12);
- if the Ofpra decides to close your application (Ceseda Art. L. 723-13);
- if the person is the subject of a definitive deportation decision.
2. New cases of automatic loss of the right to stay in France
The law of September 10th 2018 added new cases of loss of the right to stay in the territory:
- if the Ofpra decides that a request for reconsideration is ineligible (Ceseda Art. L. 743-2, 4 °) or if the Ofpra has rejected the request for reconsideration after an interview (Ceseda, Art. L. 723-2 - I);
- if the Ofpra has made a decision rejecting a person who comes from a country considered a safe country of origin1 (POS) or if their presence in France poses a serious threat to public order, public security or State security (Ceseda, Art. L. 743-2, ° 7 and Art. L. 723-2-I and 5 ° of III);
- if the Ofpra has taken a decision rejecting or deeming ineligible an asylum application made by a person subject to an expulsion order (other than an OQTF), a sentence of banning from French territory or an administrative banning from the territory (Ceseda, Art. L.743-2, 8 °).
C. The hearing
If you are placed in normal procedure, the CNDA has 5 months to judge your appeal. If you are placed in the fast-track procedure (factsheet 2):
- in addition to the appeal of the Ofpra decision, you can challenge the decision of placement in the fast-track procedure (get your lawyer to assist you);
- the decision will be made by a single judge within 5 weeks.
However, these time-limits are only indicative.
The hearing is public but you can ask – if you deem necessary – for a closed hearing (non-public session), especially if you are a minor. The CNDA court is located in the Paris region (Montreuil, Seine-Saint-Denis): you must plan ahead for transportation costs in order to be present at the hearing if you live far away. Your presence at the hearing is very important. You can ask the organization that hosts you if it can cover these costs.
The CNDA court’s decision is posted on the ground floor of the court (in Montreuil) and sent 3 weeks after the hearing by registered letter, or 1 week in the case of a fast-track procedure.
D. If the CNDA awards you protection
If the CNDA grants you refugee status or subsidiary protection, the prefecture has to send you a certificate valid for 6 months which allows you to stay in French territory.
If the Ofpra has granted you subsidiary protection, you may appeal this decision before the CNDA court and request refugee status. You will in any case keep your subsidiary protection.
E. If the CNDA rejects your appeal
The right to stay in the territory ceases as soon as the CNDA’s decision is read in open court or upon notification of the decision if the application has been rejected by decree (without a hearing).
- You can appeal to the Conseil d’État within a period of 2 months, however this appeal does not stop the clock. The Conseil d’État will not reconsider your asylum story but only if the procedural rules have been correctly observed by the CNDA.
- You can request a reconsideration of your asylum request if you can provide new information (either new information which happened after the CNDA hearing, or that you did not have knowledge of before the hearing, or new evidence relating to a disputed fact in the first request). Any new fact must be relevant and must reinforce your argument about personal fear of persecution.
In this case, you must report directly to the prefecture (without going to the Spada). If the Ofpra refuses your request a second time, a new appeal before the CNDA is possible, within a period of 1 month.
In this case, it is recommended to prepare your story before taking the steps at the Spada because the Ofpra form will need to be handed in within 8 days. If the story is unconvincing and does not showcase any new information, the Ofpra can make a decision of ineligibility without inviting you to an interview.
F. If you are refused asylum
If the CNDA rejects your request, the prefecture will automatically, and without waiting to notify the CNDA’s decision, issue you an order to leave the territory. You can file an appeal against this order but only within 15 days.
If your asylum application was registered after March 1st 2019 (application of the new law about residence of foreigners), the prefecture must inform you that you can apply for a residence permit at the same time as your asylum request. If you have not done so, an application for a residence permit after the refusal of asylum will only exceptionally be considered eligible by the prefecture, because it will be necessary to justify "new circumstances" to request to right to residence.
If, at the same time as the asylum application, you filed with the prefecture an application for a residence permit on other grounds and if the prefecture refuses to give you this permit, the prefecture will then refuse you residence and issue an OQTF order. But it can also sometimes wait for the rejection of the asylum application to take an OQTF order. In this case, this OQTF order will be based on the rejection of asylum and you will have only 15 days to challenge it. In your appeal you will have to put forth both arguments related to the refusal of asylum but also to the refusal of residence.
A single judge will then decide, following a "faster" procedure, on the rejection of the right to residence and the OQTF, and in case of rejection, the deportation measure may be executed.