France - Nice Administrative Tribunal, 23 February 2018, 1800714

Facts:

The case concerns a Sudanese unaccompanied child who was stopped by border authorities at the Menton-Garavan station, received a refusal of entry decision and was put onto a train to Ventimiglia that same day without any assurance being given by the French authorities to the Italian authorities that he would be taken into care when he arrived in Ventimiglia. His counsel seized the Administrative Tribunal of Nice by virtue of a référé-liberté in order to condemn the French authorities for violating the child’s fundamental rights as well as to oblige the border police to allow him to appear at the border post of Menton Saint-Louis so that his request to enter the French territory be re-examined, to notify the public prosecutor so that an ad hoc administrator be appointed, and to refer the matter to the president of the Departmental Council so that the child’s accommodation can be secured. 

Decision & reasoning:

The Tribunal firstly underlines the applicable domestic and European legislative framework relevant to applying for asylum at the border in France, namely that the decision to refuse entry at the French border can only be done in consultation with OFPRA, except in the case that the examination of the claim is the responsibility of another Member State.  Where an individual is given a refusal of entry decision the applicant has 48 hours by which to appeal a decision. Said decision has automatic suspensive effect on removal.

Turning to the substance of the case the Tribunal initially notes that the criterion of urgency under the référé-liberté procedure is met since the applicant has not been placed with a guardian in Italy and he finds himself in a very precarious legal and material situation. The benefit of the doubt in respect of the applicant’s age is also to be given to the applicant since his age had not been effectively contradicted by the State and the border authorities presumably also found him to be a child since they immediately conducted his return to Ventimiglia by train (a regular practice when the authorities believed that the individual was underage).

The Tribunal goes onto note that a decision refusing entry to France to a child who is not accompanied by a legal representative and to return the child to another EU Member State through which he has transited must be accompanied by specific guarantees, namely that the best interests of the child is a primary consideration and that the effective respect for the fundamental rights and freedoms of minors is ensured. Among the requirements to guarantee their effectiveness is, in particular, the obligation laid down by Article L. 213-2 of the Code on entry and residence of aliens and the right of asylum, for the administrative authority not to repatriate a child who is not accompanied by a legal representative before the expiry of the period of one clear day. In this case, the applicant was given a refusal of entry decision several minutes after being stopped by the border police and he was returned to Italy the same day. The clear day provided for in Article L. 213-2 was therefore not respected. The refusal of entry decision is therefore manifestly unlawful and constitutes a severe breach of the applicant’s interest.

The Tribunal states that whilst the interim relief judge cannot annul an administrative decision, it can order the State to take any measure likely to safeguard the effective exercise of the fundamental freedom in question. Thus the judge suspends the entry refusal decision. 

The Tribunal concludes by providing instructions to border authorities when faced with an individual who declares himself to be a child but has no identity documents.  In these cases the authorities are permitted to detain the child concerned for the time strictly necessary for the verification of his age to be carried out. Where it is not possible to determine whether the child is of full age, the doubt should be given to the child and the child (presumably without a legal representative) may not be returned before the expiry of the period of one clear day. He must therefore be taken to a waiting area where the provisions of Articles L. 221-4 and L. 221-5 of CESDA apply, as does the right to asylum, enabling, in particular, the provision of information on his asylum rights, communicated in a language he understands, and the appointment of an ad hoc administrator.

Outcome:

The judge suspends the entry refusal decision, returning the applicant to Italy.

Observations/comments:

This decision was amongst 18 others that the Tribunal gave that same day and which all suspended entry refusal decisions of other unaccompanied children at the Franco-Italian border.

Moreover, on 22 January 2018, the Administrative Tribunal of Nice (no. 1800195) condemned the immediate return to Italy of an Eritrean unaccompanied child. According to the Court, it is immaterial that the child had marked the box indicating that he “wished to go back as soon as possible”, since he was an unaccompanied 12-year old child without any legal assistance and could only understand his mother tongue.

Therefore, the Administrative Tribunal of Nice requested the relevant local regional authorities to get in touch with the Italian authorities in order to issue the child a “safe passage” (sauf-conduit) allowing him to present himself at the border post, to allocate the child an ad hoc administrator, and to inform the child about his rights and obligations on asylum matters in a language he understands.

A similar decision was given by the Administrative Tribunal on 2 May 2018 (1801843) which concerned an applicant who had attempted to request asylum three times to the French police at Menton. On his third attempt, he was detained at the border post, was provided with a refusal of entry decision, was not accompanied by an interpreter and did not benefit from the one clear day as prescribed by domestic law. Furthermore, he was not able to register his asylum application. 

The Tribunal held that the right to asylum and the right to seek asylum are fundamental rights. In principle, asylum applicants are entitled to stay on the territory up until the authorities have decided upon their claim. In respect of persons arriving at the border and claiming the right to asylum, there is a specific legal regime which excludes the possibility of enforcing the decision to refuse entry to the territory before 48 hours of its notification or before the intervention of the decision of the administrative court in case of appeal. According to the Tribunal, no circumstances can justify the non-compliance with these provisions with regard to persons arriving at the Franco-Italian border. Thus, the Prefect of the Alpes Maritimes had seriously and manifestly unlawfully violated the applicant's fundamental freedom of asylum. The Prefect should be instructed to take all necessary steps to ensure that the applicant's application be registered and considered. 

Other sources:

Schengen Borders Code