France - Administrative Court of Appeal, 3 April 2008, Mr. X., No 07NC01262
Keywords:
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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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:
The interview report established by an officer of a Prefecture is admissible evidence even if it has not been signed and was conducted without the assistance of an interpreter. When an asylum applicant denies having made statements recorded in that report, he must provide evidence. In this case, the applicant did not provide evidence that he had not crossed Italy and, in a written letter addressed to the French Office for the Protection of Refugees and Stateless Persons, he even mentioned having crossed Italy.
Facts:
In September 2003, the applicant applied for a temporary residence permission at the Prefecture of Moselle, in order to apply for asylum. According to a form written by an officer of the Prefecture in order to determine which country is responsible for the asylum procedure, the applicant mentioned during his interview that he had crossed Italy before arriving in France. France therefore initiated Dublin procedures and sent a request to the Italian authorities.
On 29 April 2004, the Prefect of Moselle refused the temporary residence application and notified the applicant of a transfer order to Italy. The applicant appealed to the administrative court of Strasbourg. He claimed he had not entered Italy before arriving in France and denied having made the alleged statements. On 29 March 2007, the administrative court of Strasbourg rejected the appeal. On 5th September 2007, the applicant appealed against this decision to the administrative court of appeal of Lyon.
Decision & reasoning:
The interview report established by an officer of the Prefecture is admissible evidence even if it has not been signed and was conducted without the assistance of an interpreter. When an asylum seeker denies having made statements that are recorded in that report, he must provide evidence.
In this case, the applicant had to prove he had not crossed Italy. The applicant did not provide any such proof. Moreover, in a written letter addressed to the French Office for the Protection of Refugees and Stateless Persons, the applicant mentioned having crossed Italy with his wife on 1 June 2003. His journey through Italy was, therefore, considered established.
Outcome:
The appeal was refused.
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.
