France - Administrative tribunal of Toulouse, 9 November 2018, N° 1805185
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Trafficking in human beings
Description
"The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. Exploitation includes, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs." |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
As a result of a transfer order to Italian authorities joined with house arrest, the applicant lodged an appeal. She argued she would be at risk of being exposed to inhuman and degrading treatments, as well as to systemic lapses of the Italian asylum system. In this case, the administrative tribunal granted annulment of those orders issued by the prefect of la Haute-Garonne in the light of the current Italian asylum conditions and the reasons motivating the applicant to reach France after having stayed in Italy.
Facts:
The applicant, a Nigerian citizen victim of an Italian prostitution network, reached France in order to claim asylum. Following a transfer order to Italian authorities issued by the prefect of la Haute-Garonne, joined with house arrest, she lodged an appeal before the administrative tribunal of Toulouse. She asked for the annulment of those two orders, eligibility to provisional legal aid, as well as enjoining the prefect to put an end to this procedure and deliver an asylum application file.
Decision & reasoning:
-The applicant argues that the transfer order poses a risk of being exposed to inhuman and degrading treatments as well as to systemic deficiencies of the Italian asylum system, disregarding Articles 3.2 and 17.1 of the Dublin regulation (EU) 604/2013 and Articles 3 and 4 of the ECHR.
She also claims that Article 4 of the directive 2013/32/EU on asylum procedures and Articles 5 and 35 of the Dublin regulation aforementioned have not been sufficiently transposed into national law to guarantee the right to effective remedy.
Lastly, the second and fourth pleas are related to procedural violations regarding the identity of the agent conducting her personal interview, the notification of the transfer order, and the justification made by the prefect in relation to the responsible Member State for her asylum claim.
Hence, the applicant consequently argues that the house arrest is deprived of its legal basis.
-The administrative tribunal of Toulouse first reminds of the applicable provisions regarding the designation of a Member State to an asylum claim and its alternatives, under Article L. 742 of the Code of Entry and Stay of Foreigners and the Right to Asylum (CESEDA) and Articles 3 and 17 of the aforementioned Dublin regulation. In this regard, it recalls that it is for the judge to search for a risk of being exposed to inhuman and degrading treatments owing to systemic deficiencies of the asylum system and reception conditions in the initially-designated Member State.
In this case, the tribunal notes that the current situation in Italy poses such risks. Therefore, it concludes that the prefect of la Haute-Garonne made a manifest error of assessment of the applicant’s situation by ordering her transfer to Italian authorities. The tribunal hence considers that there are sufficient grounds to annul those orders without further examination of the remaining pleas.
Outcome:
Appeal granted for the annulment of the two aforementioned orders and for the eligibility to provisional legal aid.
The administrative tribunal also orders the prefect of la Haute-Garonne to offer the applicant of the opportunity to seize the French immigration authorities (OFPRA) to submit an asylum application. It also orders the State to pay the sum of 1000€ under Article L. 761-1 of the administrative code of justice and Article 37.2 of the law of 10 July 1991, provided that the applicant is to be definitely eligible to legal aid and that her lawyer waives collection of the aforementioned sum of money.
Subsequent proceedings:
This judgment was subsequently overturned by judgment no. 18BX03952/23-05-2019 of the Court of Appeal of Bordeaux. The court concluded that, inter alia, the applicant had not established a specific risk relating to her vulnerability and systemic deficiencies in Italy.
Observations/comments:
This case summary was written by Celia Minh Boyon, LLM student at Quen Mary University, London.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Report of August 2016 by the OSAR (Swiss Refugee Aid Organisation)