France - Council of State, 12 January 2016, Mrs. A v. French Ministry of Interior, No. 391375
Keywords:
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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." |
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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:
The extension of a transfer time limit in accordance with Article 20(2) of Regulation (EC) No. 343/2003 of 18 February 2003 (“Dublin II”) does not create a new decision to transfer the Applicant to the responsible Member State, but has the effect of maintaining in force the initial transfer decision.
A judgment which cancels a detention measure based on Article L. 551-1 of the French Code for the Entry and Residence of Foreigners in France and of Asylum Right (“FCERFFAR”) on the grounds that the extension of the transfer time limit has not been notified to the Applicant in accordance with the formal requirements provided for in the initial decision to transfer, must be void.
Facts:
In a decision dated 22 August 2014, the Préfet du Bas-Rhin ordered that the Applicant, a Russian national, be detained in non-penitential premises for a duration of five days, pending her transfer to Poland (the responsible Member State within the meaning of Dublin II). This followed the extension, by over six months, of the time limit for the Applicant’s transfer. The reason for the detention measure was the impossibility of carrying out the transfer because the Applicant absconded.
The Applicant challenged the validity of the detention measure alleging that the extension of the time limit of the transfer created a new decision to transfer which, in order for it to be enforceable against the Applicant and to serve as a legal basis for the detention, should have been notified to the Applicant in accordance with the formal requirements provided for in Article L. 531-1 of FCERFFAR.
The Nancy Administrative Court of First Instance (the “Court of First Instance”) ordered the cancellation of the detention measure in its judgment, dated 27 August 2014 (No. 1402157). This was upheld by the Nancy Administrative Court of Appeal (the “Court of Appeal”) in its judgment, dated 31 March 2015 (No. 14NC01843).
The French Ministry of Interior lodged an appeal before the Council of State (the “Council”) on 29 June 2015.
Decision & reasoning:
Applicable Law
The Council cited Article 20 of Dublin II relating to the conditions on which an Applicant shall be returned to the responsible Member State. Under paragraph 2 of Article 20, the time limit for the transfer of the Applicant can be extend beyond six months and (i) up to a maximum of one year if the transfer or the examination of the application could not be carried out due to imprisonment of the Applicant or (ii) up to a maximum of eighteen months if the Applicant absconds.
The Council also cited the provisions of Articles L. 531-1 and L. 551-1 of FCERFFAR, which respectively state that:
· in the event of a transfer, in accordance with Dublin II, of a foreigner who is not a national of a Member State of the European Union to the Member State which admitted this foreigner to enter or stay in its territory, or to the Member State from which the foreigner directly arrives, this foreigner must be informed of such transfer by a written and motivated decision; and
· the foreigner who is the subject of a decision to transfer in accordance with Dublin II and who cannot immediately leave French territory can be placed under detention by the administrative authority in non-penitential premises for a duration of five days.
The Council then stated that the extension of the transfer time limit has the effect of maintaining in force the initial decision to transfer to the authorities of the responsible Member State and does not create a new decision to transfer for which the Applicant should receive notification in accordance with the formal requirements provided for in Article L. 531-1 of FCERFFAR as regards the initial decision to transfer.
The Council however stated that, when notifying the Applicant of the decision of to transfer, the competent authorities shall provide the Applicant with information on:
· the events and conditions under which the transfer time limit can be extended; and
· when, following an extension, the decision to transfer serves as a legal basis for a detention measure, the existence, date and grounds of the extension, notably by indicating such information in the grounds of the detention measure.
Application to the case
The Council ruled that the Court of Appeal made a mistake of law in cancelling the detention measure on grounds that the extension of the transfer time limit had created a new decision to transfer which should have been notified to the Applicant in accordance with the formal requirements provided for in Article L. 531-1 of FCERFFAR for it to be enforceable against the Applicant and serve as a legal basis for the detention measure.
Outcome:
The Council quashed the judgement issued by the Court of Appeal on 31 March 2015 and referred the case back to the Court of Appeal for it to decide the merits of the case.
Subsequent proceedings:
The case is pending before the Court of Appeal.
Observations/comments:
This case summary was written by Linklaters LLP.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Commission Regulation (EC) No. 1560/2003 of 2 September 2013 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.