France - Administrative Court Nantes, 24 July 2015, M. S, No 1506136
| Country of Decision: | France |
| Country of applicant: | Congo (DRC) |
| Court name: | Administrative Court of Nantes |
| Date of decision: | 24-07-2015 |
| Citation: | Administrative Court of Nantes, 24 July 2015, M. S, No 1506136 |
Keywords:
| Keywords |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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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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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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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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Material reception conditions
Description
“Reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.” |
Headnote:
The court overturned a decision to transfer the Applicant to his first country of asylum, Italy, on the grounds that the Prefect failed to demonstrate that Italy would have given the Applicant the relevant assurances as to appropriate reception conditions.
The court took into account the personal circumstances of the Applicant. The Tribunal found that the Prefect’s arguments were not adapted to the circumstances of the Applicant and were too general to demonstrate that transferring the Applicant to the Italian authorities would not have a substantial impact on the Applicant’s fundamental rights and the right of asylum in accordance with Article 3 of Regulation (EU) no. 604/2013 known as “Dublin III” (the “Dublin III Regulation”) Dublin III Regulation.
Facts:
The Applicant left his country of origin due to fear of persecution and crossed the Italian border before arriving in France irregularly. The Applicant applied for asylum in the Prefecture of Loire-Atlantique. The Prefect declined the application. The Italian authorities failed to respond to a request to take back the Applicant, leading the Prefect of the Loire-Atlantique region to order the Applicant’s transfer to Italy and to issue a compulsory residence order requiring the Applicant to stay in the Loire-Atlantique region for a period of forty-five days.
The Applicant appealed against his transfer to the Italian authorities, the refusal of his temporary residency and the compulsory residence order.
Decision & reasoning:
A. Request to overturn the decision refusing Applicant’s temporary residency
The court stated that Article R. 776-1 of the Code of Administrative Justice allows the Applicant to ask the administrative court to overturn a compulsory residence order within forty-eight hours of being notified of such order. The court further stated that the purpose of this expedited procedure is to ensure a rapid decision is made as to the legality of measures taken in relation to the expulsion of foreigners and not to rule on decisions as to residency. Therefore, the court held that it was not appropriate for the magistrate to hear the conclusions relating to the temporary residence request at this hearing.
The court referred the request to a panel of the court.
- Request to overturn the decision to return the Applicant to the Italian authorities and the compulsory residence order
The Applicant claimed that due to the recent delicate and changing situation in Italy regarding asylum seekers and the reception of foreigners, and given the Applicant’s personal situation, the decision to return the Applicant to the Italian authorities would have a substantial impact on the Applicant’s fundamental rights and the right of asylum in accordance with Article 3 of the Dublin III Regulation.
In defence, the Prefect had argued that Italy had a similar number of refugees as France, that Italy had 138 reception centres plus additional first reception centres, that Italy had attributed €700,000,000 to €800,000,000 to the reception of asylum seekers, including EU contributions which were to be increased, that asylum seekers that have not had a response to their application in Italy within 6 months are entitled to work, that the Applicant can benefit from the same health treatment in Italy as he had started to receive in France, and that the Applicant did not raise any concerns at his interview held in Italy.
The court stated that the arguments raised by the Prefect were not specific to the Applicant’s circumstances and were too general. Regarding the Prefect’s argument that the EU would make increased contributions to the reception of asylum seekers, the Court stated that this was only at the proposal stage. Regarding the European Council’s decision to relocate 40,000 migrants that have arrived in Italy and in Greece, the court stated that the implementation of this decision was likely to take time, whereas the transfer of the Applicant to the Italian authorities was to take place in the coming days. Contrastingly, the court noted that the Prefect did not take into account the recent worsening situation in Italy due to the influx of migrants.
In addition, the court considered the personal circumstances of the Applicant. In particular, the Applicant had contracted the Hepatitis B virus, had previously been received in Italy in an unsanitary camp where he had been given contradictory and erroneous information, and had been admitted for care by the University Hospital of Nantes.
The court further stated that, because Italy did not expressly respond to the request to take charge of the Applicant, there was a serious risk that the Italian authorities would not treat the Applicant’s asylum request in conformity with the safeguards required in order to guarantee the protection of his fundamental rights and the right to asylum.
As a result, the court overturned the decision to transfer the Applicant to the Italian authorities and the compulsory residence order.
Outcome:
The application to overturn the refusal of the Applicant’s request for temporary residence was referred to a panel of the Administrative Court.
The application to overturn the decision to transfer the applicant to the Italian authorities and to issue the compulsory residence order was granted.
Observations/comments:
This case summary was written by Linklaters LLP.
Relevant International and European Legislation:
Cited National Legislation:
Follower Cases:
| Follower Cases |
| Portugal - I. v. Immigration and Borders Service, No. 2364/18.0BELSB, 14 May 2020 |