The problematic application of the internal protection alternative in the EU and in France

Refugies - UNHCR S.KuirChokThe European Council on Refugees and Exiles (ECRE) has recently published the APAIPA (Actors of Protection and the Application of the Internal Protection Alternative) report, a comparative study dealing in particular with the application of the concept of internal protection alternative (IPA) in several EU countries. As a researcher for France, I personally took part in this study which also covers the issue of actors of protection.

The application of the concepts of internal protection alternative and of actors of protection, which both originate from the Qualification Directive, diverges among the 11 EU Member States concerned (Austria, Belgium, France, Germany, Hungary, Italy, Netherlands, Poland, Spain, Sweden and the United Kingdom). Regarding the IPA, the research noted that, in many instances, a Member States decision to rely upon the IPA was often not fully reasoned. When applied, the IPA was often used as a secondary argument, following an adverse finding of credibility (“even if your story was true, an IPA is available”). Such use of the IPA as a “secondary argument” tends to lead to decisions where the IPA is not fully assessed.

The research also indicated that in some Member States there is a lack of careful consideration of the risk of persecution in the region of relocation and no assessment of the possibility for the applicant to safely and legally travel to that region. This lack of a proper and complete assessment of the IPA criteria, such as the identification of a region of relocation, can lead in practice to the burden of proof being transferred to the applicant, who will in effect be required to demonstrate the absence of an IPA element, for instance, that there is no safe region of relocation “anywhere in the country”.

In the national report on France, we can note, on the basis of the sample of decisions reviewed, that there is currently no practice of application of the IPA (which is only a possibility provided by Article L.713-3 Ceseda) at first instance (OFPRA, French Office for the Protection of Refugees and Stateless Persons). At the appeal stage (CNDA, National Court of Asylum), there is still a very limited practice of applying the IPA, even though this practice seems to increase in an uncertain and sometimes questionable way for both procedural and substantial reasons.

In this context, we welcome the recent decision of 11 February 2015 issued by the Council of State which overturns a CNDA decision. The Council of State concludes that when the Court decides to apply Article L.713-3 Ceseda, after having established that the applicant faced a serious threat in case of return to his/her country, it is up to the Court to determine whether the applicant can have access to a protection in one part of the territory of his/her country of origin, to identify this part of the territory and to establish that he/she can safely reach this area, settle there and lead a family life there.