D. 2001, 526 Case Mme Hyacinthe
12 January 2001
Translated by:
Tony Weir
Professor Sir B. S. Markesinis

Given that article L.521-2 of the Code of Administrative Procedure provides that ““In a case of urgency the juge des référés may, if so requested, make any orders necessary to protect a fundamental freedom which has been the subject of a serious and obviously illegal invasion by a public body in the exercise of its powers”; that these preconditions are cumulative;

Given that Mme Hyacinthe, a Haitian, landed at Orly on 30 November 2000 in order to join her Haitian partner, M. Maignan, whose baby she was expecting, M. Maignan having been in France for several months waiting to be accorded the status of a political refugee; that the baby was born on 3 December 2000 in the provisional place of detention where its mother had been placed; that she was charged with entering and remaining in France without authority and of using forged documents and on 19 December 2000 sentenced by the criminal tribunal of Creil to one month’s imprisonment, suspended, and two years exclusion from French territory; that meanwhile she wished to claim the status of political refugee, as her partner had done, but was prevented by the prefecture of Seine-Saint-Denis from making her application under article 10 of the Law of 25 July 1952, as amended;

Given, on the one hand, that the fundamental freedom referred to by the Law of 30 June 2000 (No.2000-597) on proceedings before the single judge in administrative tribunals includes the constitutional right to asylum which entails the right to seek the status of a refugee, the granting of which is essential for the exercise of the freedoms generally recognised in the case of foreigners, who are subject to special rules relating to entry and residence in France and, unlike nationals, have no right of entry;

Given, on the other hand, that according to article 10(2) of the Law of 25 July 1952 (No. 52-893) asylum may not be refused on the sole ground that the foreigner does not possess the documents and visas mentioned in article 5 of the Ordinance of 2 November 1945 (No. 45-2658), and that if article 10(7)(4) of the Law No. 52-893 provides that a person seeking asylum may be refused entry into France if asylum is sought simply in order to frustrate an order to leave the country, such provisions cannot justify the rejection of Mme Hyacinthe’s request on 26 and 29 December 2000 in view especially of the fact that her companion had already applied for refugee status and the principle, applicable here, that a family must be treated as a unit;

Given that in view of what has been said the administration has exercised its powers in such a way as to infringe a fundamental freedom in a serious and manifestly unlawful manner;

But given that on the very day that Mme Hyacinthe made her request for asylum the Minister of the Interior ordered the prefect of Seine-Saint-Denis to register it, which entails a provisional right of residence, and that in view of the appeal entered against the decision of the criminal tribunal of Creil Mme Hyacinthe was accommodated in the department of Seine-Saint-Denis pending the decision of the French Office for the Protection of Refugees and Stateless Persons, measures which make it otiose to issue the injunctions requested by the complainant…

1. …
2. That for the reasons given above the administrative juge des référés need not pronounce on the arguments in favour of issuing an injunction …

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