France – Administrative Court of Appeal of Paris, 28 June 2018, N° 18PA00145
| Country of Decision: | France |
| Country of applicant: | Afghanistan |
| Court name: | Administrative Court of Appeal of Paris 4th chamber |
| Date of decision: | 28-06-2018 |
| Citation: | (France) Administrative Court of Appeal of Paris, 18PA00145, 28 June 2018 |
Keywords:
| Keywords |
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First country of asylum
Description
"A country can be considered to be a first country of asylum for a particular applicant for asylum if: (a) he/she has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection; or (b) he/she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement; provided that he/she will be re-admitted to that country." Member States may consider an application for asylum as inadmissible if a country which is not a Member State is considered as a first country of asylum for the applicant. |
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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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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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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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Request that charge be taken
Description
Formal request by one Member State in which an application for asylum has been lodged, where it considers that another Member State is responsible for examining the application, calling upon that other Member State to take charge of the applicant. It should be made as quickly as possible and in any case within three months of the date on which the application was lodged within the meaning of Article 4(2) Dublin II Regulation and subject to the conditions laid down in Articles 17 to 19. |
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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." |
Headnote:
The impossibility to proceed with an asylum applicant’s transfer to another Member State responsible for examining the asylum application is established once there is a clear and real risk for the interested party to be subject to torture or inhuman or degrading treatments within the meaning of articles 3 of the European Convention on Human Rights (ECHR) and 4 of the Charter of Fundamental Rights of the European Union (CFREU), even in the absence of having serious reasons to believe there are systemic failures in the Member State’s asylum system.
Facts:
M.A., Afghan national, arrived in France in March 2017 after having transited through Bulgaria. He applied for international protection and a Eurodac hit indicated his previous presence in Bulgaria. The Police Commissioner requested the Bulgarian authorities to take back the case. After the request was deemed to be accepted by way of implied consent, the Police Commissioner issued a return order against M.A. in November 2017.
Following an appeal lodged by M.A., the Administrative Tribunal of Paris (TA) annulled the order in December 2017. It ruled that M.A. would be at risk of being subject to inhuman or degrading treatment if he were to be transferred to Bulgaria.
The Police Commissioner lodged an appeal against this decision before the Administrative Court of Appeal of Paris (CAA).
Decision & reasoning:
The applicant argues that Bulgaria is presumed to respect the rights of asylum seekers as an EU Member State. He also argues that M.A. has neither established the existence of systemic failures in the Bulgarian asylum system, nor provided evidence of having been subject to inhuman or degrading treatment in Bulgaria.
The Court first recalls articles 3 of the ECHR and 4 of the CFREU relating to the prohibition of torture or inhuman or degrading treatments.
It also recalls the second paragraph of Article 3 of the Dublin Regulation (UE) 604/2013, relating to the impossibility to transfer an asylum seeker to another Member State in which there are serious reasons to believe systemic failures of the asylum system lead to a risk of being subject to inhuman or degrading treatments, in which case the Member State having first identified the responsible Member State becomes once again responsible for the examination of the application for international protection.
In this regard, the Court refers to the CJEU’s decision of 16 February 2017 (C-578/16 PPU), in which it decided that a transfer could not take place in case of a clear and real risk for the interested party to be subject to inhuman or degrading treatment within the meaning of article 4 of the CFREU, “even in the absence of having serious reasons to believe that systemic failures of the asylum system exist in this Member State”.
The Court observes in this case that M.A. has established through medical reports that he suffered physical abuse and was deprived of his liberty without any access to medical care, while his personal belongings had been confiscated in Bulgaria. It then concluded that M.A. would be at risk of being subject to inhuman or degrading treatment once again if transferred to Bulgaria, without further requiring the existence of systemic failures in the Bulgarian asylum system.
Outcome:
Appeal rejected. All surveillance measures must come to an end on the grounds of Article L. 742-6 of the code of entry and stay of foreigners and the right to asylum.
The Police Commissioner was ordered to deliver M.A. with a provisional residence permit and to examine his case within 1 month, on the grounds of Article L. 911-2 of the code of administrative justice.
The State was ordered to pay the sum of 1500€ to M.A…’s lawyer, M.A… having been granted judicial aid, on the grounds of articles L. 761-1 of the code of administrative justice and 37 of the law of 10 July 1991, subject to renunciation.
Observations/comments:
« No return to Bulgaria for a dublined asylum seeker » AJDA 2018. 2279 — 26 novembre 2018 (available in French only with Dalloz access)
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-578/16 PPU, C.K. and others |