France – Council of State, 15 July 2004, Mr. X. v Minister for the Interior, No 263501
| Country of Decision: | France |
| Country of applicant: | Russia (Chechnya) |
| Court name: | Council of State |
| Date of decision: | 15-07-2004 |
| Citation: | No 263501 |
Keywords:
| Keywords |
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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." |
Headnote:
In this case, the Council of State held that the separation of a family, which results from the implementation of the Dublin Regulation, is unlawful if it has not been ascertained that the family could be reunited in one of the two countries concerned under the Regulation.
Facts:
The applicants are a married couple of Russian nationality with Chechnyan origins and two children, respectively 5 years and 3 months old. They entered France on 18 June 2003 after travelling through Austria. Both applied for asylum in France in July 2003, however, only the wife received a receipt for the asylum application on 1 September 2003. The husband’s application for a temporary residence permission was rejected on 2 October 2003 and he received a transfer order to Austria, in accordance with the Dublin Regulation. The husband was transferred on 8 October 2003, which resulted in the family being separated. The wife and the children (including a child born in France in July 2003) remained in France.
The applicants appealed to the Administrative Tribunal of Paris. However, the husband was denied permission to re-enter France and the court refused to suspend the execution of the decisionof 2 October. Consequently, the applicants lodged an appeal to the Council of State, although the husband had already been transferred back to Austria.
Decision & reasoning:
The Council of State began by stating the fact that the husband had been transferred to Austria had not affected his right to appeal. The Council was of the opinion that the contested decision, confirmed by the Administrative Tribunal of Paris, resulted in the separation of the family when it had not been established that their family life could be maintained in Austria, since France had acknowledged responsibility for examining the asylum application of the wife and she would have to remain in France for the entire procedure. The Council held the Tribunal had damaged its decision by distorting some elements of the application. The Tribunal should have raised the possibility of questioning the legality of the refusal on 2 October 2003 of the husband’s application for a temporary residence permit. This decision was likely to prejudice the right to respect for the private and family life of the husband, guaranteed by Art 8 of the European Convention on Human Rights.
The Council suspended the execution of the prefect’s decision and ordered the Chief of Police to issue a temporary residence permit allowing the husband to file an application for asylum in France with the OFPRA. Thus, in this case, the Council considered that the separation of a family, which results from the implementation of the Dublin Regulation, is unlawful if it has not been ascertained that the family can be reunited in one of the two countries concerned under the Dublin Regulation.
Outcome:
The appeal was allowed and the decision of the Administrative Tribunal was quashed.
Observations/comments:
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.
