In 2004, Ms. A.Y arrived from Guinea to claim asylum. She alleged to have been detained, tortured and raped by military officers in 2003 due to her political activity in U.F.R party. In May 2005, she moved in with her partner a EU citizen from Netherlands. In 2006, she suffered an miscarriage which ended her pregnancy. On June 4th 2009, Ms. A.Y and her partner registered a civil partnership (PACS)with the intent to get married at a later date.

On May 2nd 2008, the national court of asylum (CNDA) rejected her appeal on the decision of the asylum officers of OFPRA to deny her asylum. On May 5th 2009, the prefect in Annecy ordered her deportation to Guinea due to her “unlawful” stay. On May 15th 2009, Ms. A.Y filed an application to the ECHR on the ground that she will be submitted to torture (art.3), separated from her partner (art.8) and not able to get married (art.12) if deported. The French government suspended the deportation order following request from the E.C.H.R (art.39).

The French government never transposed the articles 2-2-b) and 3-2-b) of the directive 2004/38/EC in national law (code of migration and asylum). These articles allow registered partner and partner in durable relation with a EU citizen to obtain a 5 years residence card upon registration. The deadline of the transposition of the directive 2004/38/EC was April 30th 2006. On July 25th 2008, the European Court of Justice ruled in case Metock (C-127/08) that any EU citizen’s family member have legal status under the directive 2004/38/EC irrespective of the lawfulness of his entry or stay before becoming a family member (99). The Court added an unlawful stay before becoming a family member can’t be a ground for deportation of the family member (97).

In its observation to the Court, the French government didn’t allege that the personal conduct of Ms. A.Y represents any “threat affecting one of the fundamental interests of society” . But it stated if the applicant is deported to Guinea, the couple could live there.

In its decision of October 11st 2011, the Court found that the deportation order to Guinea was in “accordance with the law“. On the contrary, the deportation order on the ground of “unlawful stay” (art. L511-1 of the code of migration and asylum) was taken in violation of articles 3-2-b) and 27 of the directive 2004/38/EC and the ECJ judgment Metock (C-127/08). The Court added that from May 2005 to April 2009, the couple couldn’t have a “legitimate expectation that right of residence would be granted to the applicant“. On the opposite, the applicant should have a legitimate expectation that the French government will respect the directive 2004/38/EC and the case-law of the European Court of Justice, and acknowledge her right of residence.

Finally, the Court ruled the application inadmissible as manifestly ill-founded on the surprising ground that if Ms. A.Y is deported to Guinea her EU citizen partner could live with her. But there is no provision under the Guinean immigration executive order 94/059 to grant an immigrant visa and a residence card to the partner or spouse of a citizen of Guinea. On the opposite, Ms. A.Y could live with her partner in any of the 27 countries of the European Union under articles 2-2-b), 3-2-b) and 7 of the directive 2004/38/EC.

This decision A.Y v. France (25579/09) raises serious concerns about the respect of the European Union Law and the case law of the European Court of Justice, by the European Court of Human Rights. The applicant was represented by Me Michele Blanc (Annecy).

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