France – Council of State, 2 March 2007, Minister for the Interior v Mr. A., No 302034
Keywords:
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is a concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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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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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
Headnote:
The presence of an adult asylum applicant’s sibling in an EU Member State entails no obligation for that State to apply Art 7 Dublin Regulation, as siblings are not included in the definition of family members in Art 2(i). This was the case even though the applicant’s brother had been granted refugee status and, subsequently, citizenship in France.
Facts:
The applicant left Iran for Turkey and then entered Greece, where he resided from April to September 2006 without applying for asylum, according to his statement. The applicant then left Greece in September 2006 and entered France on 2 October 2006. On 3 October he presented himself to the Regional Administration of Haute Garonne and applied for asylum.
The Regional Administration rejected his application for a temporary residence permit in France and initiated Dublin procedures. A transfer request was sent to the Greek authorities on 8 November 2006, in accordance with article 17 Dublin Regulation. The Greek authorities agreed to the transfer on 29 November. France had until 28 May 2007 to proceed with the transfer of the applicant.
The applicant appealed to the Administrative Tribunal. He requested that the Tribunal order the prefect to grant him the right to remain in France for the duration of the examination of his asylum application, based on the family ties he maintained with his elder brother who had obtained refugee status in France in 1998 and who became a French citizen in 2004. The Administrative Tribunal allowed the appeal on 7 February 2007. The Minister of the Interior appealed to the Council of State.
Decision & reasoning:
The applicant raised a number of arguments to acknowledge France’s responsibility in the examination of his asylum request:
- Initially, he alleged a violation of Art 3(4) Dublin Regulation. The Council of State maintained that the applicant had received all obligatory information in a language he understood and therefore did not accept this argument.
- The applicant then noted the failure to respect the timeframe of the Dublin procedure, set out in Art 17 Dublin Regulation. This argument was not accepted by the Council, which pointed out that the deadlines for the transfer request and for the reply from the requested country had been met, and that the maximum deadline for the transfer of an asylum applicant had not yet been reached at the time of this ruling.
- The applicant alleged a violation of Art 7 Dublin Regulation. The Council of State held the presence of the applicant’s brother in France did not meet the criteria for applying this article, as siblings are not included in the concept of family as defined in article 2(i) of the Regulation.
- Finally, the applicant relied on Art 15 of the Dublin Regulation. The Council of State found that, although the prefect had the obligation to consider the application of this article, he was not required to implement it in the case at hand. Moreover, he had until 28 May 2007 to rule on the matter.
As a result, the Council of State limited itself to only rule on the violation of Art 7 of the Dublin Regulation, believing that the presence of a brother (refugee, who was then granted citizenship) entails no obligation to implement this article.
Considering, in third place, that article 7 of the [Dublin]Regulation (EC) n° 343/2003 states that when a family member has been admitted in a member country as a refugee, this country shall be in charge of the asylum request filed by another member of the family, if it is the wish of the concerned individual; that, however, this criteria, which is among those which identify the State responsible for the study of the claim, can only include family members designated in i of article 2 of the said Regulation ; that [the applicant], born in 1984, is an adult, and that his elder brother who was admitted as a refuge in 1998, is not included as a qualifying family member as stated in article 2 ; that the asylum seeker cannot then appeal the prefect’s decision as a violation of article 7 of the Regulation.
Outcome:
The appeal was allowed and the decision of the Administrative Tribunal was overturned.
Observations/comments:
This decision set a precedent and has been reproduced in various instances. For example, in France - Council of State, 13 June 2007, Mr. A v Minister of Immigration, No 306126, where the brother of the asylum applicant was also applying for asylum.
This summary has been reproduced and adapted for inclusion in EDAL with the kind permission of Forum Réfugiés-Cosi, coordinator of Project HOME/2010/ERFX/CA/1721 "European network for technical cooperation on the application of the Dublin II regulation" which received the financial support of the European Refugee Fund.
