France – Bordeaux Administrative Court of Appeal, 27 September 2016, 16BX00997
| Country of Decision: | France |
| Country of applicant: | Congo (DRC) |
| Court name: | Bordeaux Administrative Court of Appeal, 3rd Chamber |
| Date of decision: | 27-09-2016 |
| Citation: | 16BX00997 |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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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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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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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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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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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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Request to take back
Description
Formal request by one Member State that another Member State take back, under the conditions laid down in Article 20 of the Dublin II Regulation: - an applicant whose application is under examination and who is in the territory of the requesting Member State without permission; - an applicant who has withdrawn the application under examination and made an application in the requesting Member State; - a third-country national whose application it has rejected and who is in the territory of the requesting Member State without permission. |
Headnote:
The applicant had sufficiently established that if returned to Hungary under the Dublin Regulation he would not benefit from an examination of his asylum application in line with procedural guarantees as required by the right to asylum. Such a transfer decision thus violated Article 4 of the Charter.
Facts:
The case stems from the decision taken by the Haute-Vienne prefecture to transfer the applicant to Hungary under the Dublin Regulation and to place him in administrative detention. The prefecture’s decision was subsequently confirmed by the Administrative Tribunal of Toulouse which the applicant now appeals before the Administrative Court of Appeal.
The applicant submits, inter alia, that the decision taken to transfer him to Hungary was based on generalities without specific legislative reference as to Hungary’s responsibility or to the applicant’s individual circumstances. Nor was any mention had to why the applicant could not benefit from the discretionary clauses leading to the argument that a detailed examination of his case had not been undertaken.
Additionally the procedural rights within the Dublin Regulation had not been respected, notably information on the procedure in a language the applicant understood. Moreover, the prefect had not taken into account credible reports from various actors on the deficiencies in the Hungarian asylum procedure. The decision further breaches Article 13 of the ECHR since an appeal against such a decision does not have automatic suspensive effect.
As to the decision on detention there had been a manifest error of assessment given that there was no risk of absconding and that less coercive measures were available to the prefect.
Conversely the prefect held that the applicant had been notified of the procedures applicable to him during his personal interview, that Article 26(2) of the DR III does not require the acceptance of the Member State to be notified to the applicant, that there were no reasons as to why Article 17 should apply in the applicant’s case and that any allegation on the part of the applicant of a breach of Article 13 is unfounded since a request for the suspensive effect of a decision can be made. Lastly no evidence had been advanced by the applicant to show that Hungary, a State party to the 1951 Convention and the ECHR, does not fulfil its obligations in the reception and protection of asylum seekers.
Decision & reasoning:
With reference to Article 13(1) and 3(2) of the Dublin Regulation III the Court highlights that the presumption of Member States adherence to Article 4 of the Charter is rebutted where there are systematic deficiencies in the asylum procedure and in reception conditions demonstrating a risk of inhumane treatment if the applicant were to be transferred to a particular Member State.
Notwithstanding that Hungary is a Member State of the European Union the Court notes the infringement procedures launched on 10 December 2015 against Hungary by the European Commission. The focus of said procedures has been on the incompatibility of the Hungarian asylum procedures with the Asylum Procedures Directive. Most notably the impossibility of presenting new facts and circumstances in an appeal, the lack of suspensive effect of an appeal and of interpretation and translation and new domestic legislation on judicial control which is likely to breach the right to an effective remedy before an impartial tribunal. Moreover, the Court highlighted that following on from reports by the Commissioner for Human Rights of the Council of Europe the Commission had also noted the practice of placing asylum applicants in a restrictive detention regime without an effective access to a remedy.
The Court, therefore, highlights that the applicant had sufficiently established that if returned to Hungary he would not benefit from an examination of his asylum application in line with procedural guarantees as required by the right to asylum. This would constitute a breach of Article 4 of the Charter. The decision of the prefect and Administrative Tribunal were thus unlawful. In light of the above conclusion the Court found that the decision to place the applicant in administrative detention was also unlawful.
Outcome:
The decision of the prefecture and Judgment 10600008 of 6 January 2016 by the Toulouse Administrative Tribunal are overturned.
The prefect is ordered to provide the applicant with permission to stay for the duration of the applicant’s asylum proceedings in France.
Observations/comments:
Similar conclusions have been reached in a series of jurisprudence from the Administrative Tribunal of Versailles in which the Tribunal has referenced domestic legislative amendments in the Hungarian asylum procedure, infringement procedures launched by the Commission and two pending cases before the European Court of Human Rights on the potential breach of Article 3 if the applicants were transferred to Hungary from Austria (A.A v Austria and S.O v Austria) (Administrative Tribunal Nantes No. 1603238 4 May 2016; No. 1602342 1 April 2016; No. 1602127 24 March 2016 (attached); No. 1601967 18 March 2016).
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Commission opens infringement procedure against Hungary concerning its asylum law, 10 December 2015.
Commissioner for Human Rights of the Council of Europe, Third Party Intervention, 13 January 2016