France – Council of State, 19 November 2010, Mrs. E. v Minister for the Interior, No 344372
Keywords:
| Keywords |
|
Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
|
Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
|
Duty of applicant
Description
The duty imposed on an applicant for international protection by Article. 4(1) of the Qualification Directive to submit as soon as possible all elements needed to substantiate the application for international protection. |
|
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. |
|
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 failure of an asylum applicant to appear with her children (systematically or repeatedly) when summoned in relation to a transfer order under the Dublin Regulation is considered as absconding and results in the extension of the transfer deadline to 18 months. In this case, the applicant never appeared with her children despite receiving several notifications and, according to the Council of State, she was aware that the presence of her children was crucial in order to proceed with her transfer.
Facts:
The applicant first applied for asylum in Poland and her fingerprints were taken on 23 October 2007. On 24 January 2010 the applicant entered France with her two children, two and six years old respectively. She applied for a temporary residence permit at the Prefecture of Alpes-Maritimes in order to apply for asylum.On 15 June 2010, the Prefect refused to grant the temporary residence permit on the ground that, according to the Dublin Regulation, Poland was the Member State responsible for her application. Poland had accepted to take charge of the applicant in a decision issued on 12 March 2010. The applicant was notified she had to leave the French territory within one month. The applicant did not return to Poland within the stipulated deadline and the Prefect therefore summoned her, by a letter dated 6 August 2010, to appear before the air and border police of the Nice-Côte d’Azur airport. The authorities never executed this decision, or the decisions following subsequent notifications on 18 and 31 August and 13 September 2010, as the applicant never showed up with her children.
On 6 September 2010, the Prefect issued a decision whereby, considering the applicant as having absconded, the time limit of the order of 15 June 2010 was extended to 18 months. A new notification to appear, issued on 20 October 2010, was also unsuccessful. The prefect of the Alpes-Maritimes therefore decided, by an order on 12 November 2010, to place the applicant in detention. This measure was extended. The applicant referred the case to the Administrative Tribunal of Nice, requesting that the Prefect be ordered, under penalty and without delay, to issue her a temporary residence permit and to undertake the necessary measures to ensure her protection by ordering that she be temporarily taken care of. The Tribunal rejected the request and the applicant appealed to the Council of State.
Decision & reasoning:
Firstly, the Council of State mentioned that Art 19 Dublin Regulation holds that the transfer of the asylum applicant to the responsible Member State should be done within six months from the acceptance to take charge of the application, unless the applicant absconds, in which case the duration will be extended to 18 months. Secondly, the Council added that, in the present case, the applicant never appeared with her children despite several notifications addressed to her and the fact that, according to the Council, she was aware that the presence of her children was crucial in order to proceed with her Dublin transfer and to enable the administration to issue her a pass consistent with a controlled departure. As a result, the Council concluded that, since the applicant has never appeared before the authorities further to the notifications addressed to her in view to transfer her and her children, she was considered as absconding, and such behaviour can be regarded as an intentional and systematic abstention from the control of authorities in the aim of hindering the transfer procedure.
Outcome:
The appeal was rejected.
Observations/comments:
This case was confirmed by several decisions on 23 August 2011 (No 351880, No 351881 and No 351888).
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.
