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On December 23rd 2008, Mr. I.M was arrested for “unlawful entry” and for “using forged documents” at the railway station of Cerbère in France. During his police custody, his claim for asylum was not recorded by the police officer. He was then detained awaiting trial. On December 26th 2008, he was condemned in a “fast track” trial to one month in jail for “unlawful entry” (art.L621-1 of the code of migration and asylum) despite article 31-1 of the Geneva Convention of 1951. During his detention, another claim for asylum was not recorded.

On January 7th 2009, the local prefect ordered the deportation of Mr. I.M to Sudan. On January 12th 2009, the appeal against his deportation order was rejected by an administrative judge of the administrative tribunal of Montpellier.

On January 16th 2009, he was detained at the immigration detention center of Perpignan awaiting his deportation to Sudan. On January 22th 2009, his claim for asylum was recorded by OFPRA and classified automatically “fast track” (art.L723-1 of the code of migration and asylum). On January 30th 2009, he was interviewed by a case worker of OFPRA and his application was denied the same day. Mr. I.M appealed the decision to the court (CNDA). Nevertheless, on February 11th 2009, Mr. I.M was brought by French police officers to the consulate of Sudan to obtain travel document for his deportation.

On February 16th 2009, Mr. I.M filed an application with the ECHR on the ground that his deportation to Sudan will be a violation of article 3 of the Convention and that the lack of effective remedy a violation of article 13. The same day, the president of the 5th section requested the French Republic to suspend the deportation of the applicant pending a decision of the ECHR (Rule 39). On May 12th 2009, the application was communicated to the agent of the French Republic with questions to be answered within 16 weeks. On December 14th 2010, the application was found admissible. On May 17th 2011, the Court held a public hearing . UNHCR submitted 2 briefs “amicus curiae” (2009, 2011) and intervened during public hearing.

On February 2nd 2012, the 5th section of the ECHR ruled that the allegation of violation of article 3 was inadmissible on the ground that on October 14th 2010 the court (CNDA) granted the applicant refugee status (art.35-3-a). The Court found a violation of articles 13 and 3 of the Convention because the applicant received an unsatisfying legal and interpreting assistance from the duty lawyer (§155) and from the on site NGO Cimade (§145). The Court added that for detained asylum seekers, the automatic classification of their cases as “fast track“, the difficultly to gather evidence, and the shorter delays to claim asylum (5 days) and to appeal their deportation orders (48h) limited severely their access to domestic remedies.

The judgment ordered the French Republic to pay €0 in damages and €4,746.25 in legal fees to the applicant. He was represented by Me Gabriele Summerfield (Perpignan).

On January 23rd 2009, Ms. Kanagaratnam and her 3 minor children M. , G., A. claimed asylum at the passport control of the airport of Brussels (art.50ter law December 15th 1980). They were refused entry and ordered to be deported (art. 52/3 §2) because they claimed asylum without possessing a valid passport and visa (art. 2 §2). An order for their detention in the immigration center “127 bis” (Steenokkerzeel) for 2 months was taken (art. 74/5 §1 2o) because they claimed asylum without possessing a valid passport and visa.

The immigration detention center “127 bis” (Steenokkerzeel) was visited by the CPT (1997 visit report, 2005 visit report), by the Commissioner for Human Rights (2008 visit report CommDH(2009)14) and by the LIBE commission of the European Parliament (2007 visit report see below).

On March 17th 2009, the court CCE (Conseil de contentieux des étrangers) rejected their appeal of the denial of their asylum applications by the Commissioner general for refugees and stateless persons (CGRA) on February 23rd 2009. On March 20th 2009, the police attempted to deport them to the Democratic Republic of Congo.

On March 20th 2009, Ms. Kanagaratnam and her 3 children filed an application with the ECHR on the ground that their deportation to Sri Lanka via DRC will be a violation of article 3 of the Convention. They added that their detention was a violation of article 3 and 5-1-f) of the Convention. The Court requested the suspension of the deportation order (Rules art.39). On the same day, an order of detention of the family for 2 months was taken on the basis that they refused to board the plane to DRC.

On March 23rd 2009, the family filed a 2nd asylum claim. Immediately, another order of detention was taken for 2 months (art. 74/5 §1 2o). During their whole detention, the family made 2 requests to be released (art. 71§2) which were both denied by the appeal court of Brussels. The 2 appeals to the supreme court were also rejected. On May 4th 2009, the family was released by administrative decision. On September 2nd 2009, the family was granted refugee status by administrative decision of the Commissioner general for refugees and stateless persons (CGRA).

On November 25th 2009, the application was communicated to the agent of the Kingdom of Belgium with questions to be answered within 16 weeks. On December 13th 2011, the 2nd section of the Court found a violation of articles 3 and 5-1 for the 3 children on the ground that the immigration center “127 bis” was not tailored for their detention (Judgment Muskhadzhiyeva v. Belgium (41442/07) §63 and §75). It also found that the detention of Ms. Kanagaratnam from March 23rd 2009 to May 4th 2009 was “arbitrary”  in violation of article 5-1 because of the length of her detention in a facility not tailored for families. The Court awarded the applicants €46,650 in moral damages and €4,000 in legal fees. The applicants were represented by Me Zouhaier Chihaoui (Brussels).

Mr. Tristan Wibault of the NGO Belgium Committee to Help Refugees (Comité Belge d’Aide aux Réfugiés) found the judgment to be a positive development of the case-law regarding the detention of asylum seekers.

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