In France, refugee status can be divided into two categories: The conventional refugee, whose protection is granted under the Geneva Convention, and the constitutional refugee, based on the French constitution. InfoMigrants takes a look at the requirements for this little-known second category.
There is a sub-category of refugee status that is little known in France: constitutional asylum. This protection can be granted by Ofpra (Office for the Protection of Refugees and Stateless Persons) or the National Asylum Court (CNDA) to "any person persecuted because they have fought for freedom." This is thanks to paragraph 4 of the foreword of the 1946 Constitution.
According to Ofpra, there are four key criteria:
- The applicant must be a victim of "actual persecution", they cannot be simply in fear of persecution (unlike the so-called "conventional" refugee).
- The perpetrators of this persecution may or may not be identified and may or may not be organized.
- The applicant must currently be or must have been actively committed to the establishment of a democratic regime or related values (freedom of expression, freedom of association, freedom of association, trade union freedom, etc.).
- This commitment must be motivated by considerations of general interest (and not of a personal nature).
Constitutional asylum mainly concerns opponents of political or religious extremism, journalists or intellectuals fighting for freedom of the press or freedom of expression, as well as women fighting for their rights. These latter are among "the main beneficiaries of the Court's decisions granting constitutional asylum since 2001," reports the CNDA.
The protection provided to the constitutional refugee is identical to that of a classic refugee. The most notable difference between these two categories lies in the fact that, unlike the classic refugee status which is based on the Geneva Convention, constitutional asylum is specifically based on the French constitution.
A handful of constitutional refugees every year
In its statistics, the French interior ministry combines the two categories, as constitutional asylum is so rarely granted. However, the CNDA, in its annual report unveiled at the end of January, makes the distinction and indicates that only one person was able to benefit from it in 2020.
This was an Iraqi activist who risked being assassinated if she returned to her country of origin because of her opposition to the Islamic State terror group. Like her, at most a dozen people each year have been granted the status of constitutional refugee since 2001, the Court points out.
Applications for this type of asylum are not often successful for good reason, according to Gérard Sadik, in charge of asylum issues at the aid organization Cimade.
"When an applicant comes to Ofpra, its agents determine whether he or she qualifies for conventional or constitutional asylum depending on each individual case. The applicant or the person accompanying them can invoke constitutional asylum, but Ofpra almost never responds to this request," he explained in an interview with InfoMigrants.
"We are now almost in the situation of unconstitutionality since we should have to examine the asylum application of the 'freedom fighter'. But they must first be qualified as such. But Ofpra is not informed if the applicant comes, for example, from a safe third country or if he has already passed the Dublin Regulation. It is therefore extremely rare to succeed in asserting the status of constitutional asylum seeker since the applicant hardly ever passes the first step of the complex administration procedure".
The concept of constitutional asylum was introduced in France in the 1990s. It started to develop at the end of that decade and into the early 2000s, "when a number of conflicts between armed groups, in Algeria and Bosnia for example, were raging," continues Sadik.
At that time, around sixty people were granted constitutional asylum every year, according to Sadik. They were mainly Algerians who were victims of abuse and violence from the Armed Islamic Group of Algeria. But there were also a number of Bangladeshis, civilian leaders from several countries and women who were asserting their rights, particularly in Afghanistan.
"These are the initial grounds for asylum in France, but it still remains very elitist," says Sadik. "Constitutional asylum has lost its important position today, especially because the criteria for this status overlap with that of the secondary protection".
Hijacking the Dublin Regulation
Sadik acknowledges that this status is essentially a little obsolete now. "A person can invoke constitutional asylum to escape the Dublin regulation [this stipulates that the first country trodden on within the European Union must be the country of the asylum application]. For example, I accompanied a Burundian journalist who had already obtained a Belgian visa but who wanted to live in France. In his case, constitutional asylum worked whereas with conventional asylum he would have been forced to return to Belgium", says Sadik.
No longer serving "any real role in giving protection to people," constitutional asylum is still an interesting legal tool, according to Sadik. This is especially true at a time when Europe is working on asylum reform and a new regulation on migration.
"If these new texts pass, it will be possible for us to undermine certain provisions, such as the notion of safe third countries, by challenging them on the basis of constitutional asylum," the specialist concludes.