France – Council of State, 26 June 2009, Mr. A. v Prefect of Bouches du Rhône, No 329035

Facts:

The applicant came to France to apply for asylum. He was placed under a Dublin procedure as France claimed Greece was responsible for his asylum procedure. The Prefect asked the Greek authorities to accept a transfer, but no transfer decision was made. The applicant then appealed to the Administrative Tribunal of Marseille, for interim measures (juge des référés) urgently requesting a ruling on his asylum claim within 72 hours, and to re-examine his request for a temporary residence permit.

The applicant argued the contested transfer decision lacked sufficient motivation and that it contained a legal error. The applicant argued the facts were inaccurate since he was registered as having illegally crossed the border and not as an asylum applicant. The decision is a serious and manifestly illegal infringement on the applicant’s right to asylum. The procedure to determine which Member State is responsible for the asylum procedure was conducted without the guarantee of the right to information provided by Art 3 and Art 4 of the Dublin Regulation and of Art 10(a) of the Asylum Procedures Directive. The Prefect did not apply the Dublin Regulation’s provisions fairly. There exist no procedural guarantees in Greece. The administration, apart from infringing the applicant’s right to access the asylum procedure, also infringed his right to benefit from material reception conditions for asylum applicants.

The Administrative Tribunal rejected the appeal on 4 June 2009. The applicant appealed to the Council of State.

Decision & reasoning:

The Council of State recalled Art 521-1 of the Administrative Justice Code. The Council noted a Member State could, according to the provisions of the Dublin Regulation, refuse to grant a temporary residence permit to an asylum applicant if it considers that another Member State is responsible for the asylum procedure. The Council of State concluded that, since the asylum applicant was not yet subject to a transfer decision, there was no particular need for an urgent intervention by the judge (juge des référés) within the 48-hour period, as provided by article L.521-2 of the Administrative Justice Code.  An intervention by the urgent applications judge [juge des référés] on the grounds of urgency is not considered until a decision on a transfer under the Dublin Regulation has been made in relation to an asylum applicant.

Outcome:

The appeal was rejected.

Observations/comments:

This case clarifies the practice of the judge of urgent applications [juge des référés] in France in relation to Dublin transfers. The judge is called to decide a case urgently where it concerns either an administrative decision that violates a fundamental right or an imminent decision that could cause such a violation. The decision of the judge of urgent applications [juge des référés] is not final but can provide for temporary relief and suspension of transfers in the context of the Dublin II Regulation.

In this case, the Council of State concluded that an intervention by the urgent applications judge on the grounds of urgency is not taken into consideration until a decision on a transfer under the Dublin Regulation has been made in relation to the asylum applicant.