France - Administrative Court, M., n° 1603217, 2 May 2016
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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Freedom of movement (right to)
Description
Generally: “This right is made up of three basic elements: freedom of movement within the territory of a country, right to leave any country and the right to return to his or her own country." In an EU context: "A fundamental right of every citizen of an EU Member State or another European Economic Area (EEA) State or Switzerland to freely move, reside and work within the territory of these States. Notes: 1. This is a fundamental right enshrined in Article 45 of the Charter of Fundamental Rights of the European Union. 2. Whilst initially one of the founding rights in the establishment of the European Union, it has also been extended, via various acquis and agreements (e.g. see Protocol 19 of the Treaty on the Functioning of the EU), to other EEA states (i.e. Iceland, Liechtenstein, Norway) plus Switzerland and certain categories of third-country nationals (as outlined in Notes 4. and 5. below). 3. Some Member States have applied transitional arrangements that currently restrict freedom of movement of workers/(citizens) of EU-2 Member States (see http://ec.europa.eu). 4. Whilst third-country nationals have the right to travel freely within the Schengen area, taking up residence in another Member State is covered by specific legal instruments, detailed below. 5. Third-country nationals may take up residence in another Member State depending on their status and subject to the necessary conditions being met. For third-country nationals who are long-term legal residents in an EU Member State, this is covered by Chapter III of Council Directive 2003/109/EC, whilst for third-country nationals with highly qualified employment, this is covered by Article 18 of Council Directive 2009/50/EC.” |
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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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Health (right to)
Description
Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness. Member States shall also ensure that beneficiaries of refugee or subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such statuses. |
Headnote:
The court overturned a decision to transfer the Applicant to his first country of asylum, Bulgaria, and also overturned the placement of the Applicant in administrative detention for five days.
The court held that given the general state of reception conditions for asylum applicants in Bulgaria and the Applicant’s particular circumstances, in particular his physical vulnerability, there were substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for asylum applicants and that if the Applicant was handed over to Bulgarian authorities, his asylum application would not be properly examined or he would be at risk of suffering inhuman or degrading treatment contrary to Article 4 of the Charter of Fundamental Rights of the European Union, article 3 of the European Convention on Human Rights, and paragraph 2 of article 3 of Regulation (EU) no. 604/2013 known as “Dublin III” (the “Dublin III Regulation”).
Facts:
According to the information provided, the explanations given by the Applicant and a medical certificate issued at the detention centre, the Applicant was arrested in Bulgaria at the end of November 2015 by the Bulgarian police. During his arrest, he was beaten and was unable to explain his specific circumstances and vulnerability of having only one kidney since he left his country of origin, given the lack of an interpreter. He was then taken away in a truck and placed in a large unheated room with other migrants where they were forced to strip naked, left without food and water for a number of hours, and forced to give their fingerprints. Those who refused were beaten again. They were locked in this room for twelve days, sleeping on iron beds without mattresses, without the ability to take a shower, and sharing only one toilet. Thereafter they were taken to the closed camp in Pastrogor. A camp officer offered the Applicant a green card allowing him to leave the camp for 100 euros. The Applicant paid this sum but never received the aforementioned card. Throughout the period of his detention (November 2015 to December 2015), the Applicant continued to request for medical help and assistance from an interpreter. However, these requests were never met. The Applicant had never intended to request for asylum in Bulgaria.
By a decision dated 27 February 2016, the Prefect for the North region held that the Applicant be transferred to the Bulgarian authorities and ordered that he be placed in administrative detention for five days.
Decision & reasoning:
The court noted that the facts relating to the time spent by the Applicant in Bulgaria were consistent with elements covered by reports and alerts published by the non-governmental organisations Pro Asyl, Amnesty International and Bulgarian Helsinki Committee. These reports and alerts relayed the violence committed during arrests, the deteriorated state of reception conditions for asylum applicants who were deprived of interpreters, medical help and frequently even food. They also reported the fact that the Bulgarian state had not distributed any financial support since March 2015.
The court further noted that the presumption that a Member State of the European Union participating in the implementation of the Dublin III Regulation meets its obligations under article 4 of the Charter of Fundamental Rights of the European Union can be rebutted in the event of systemic flaws in the asylum procedure and in the case of reception conditions for asylum applicants in that member state resulting in those applicants suffering inhuman or degrading treatment.
The court considered that, given the general state of reception conditions of asylum applicants in Bulgaria and the circumstances relating to the Applicant, in particular his physical vulnerability, the Applicant had established that there were substantial grounds for believing that if the Applicant were handed over to Bulgarian authorities, his asylum application would not be properly examined or he would be at risk of inhuman or degrading treatment contrary to article 4 of the Charter of Fundamental Rights of the European Union, article 3 of the European Convention on Human Rights, and paragraph 2 of article 3 of the Dublin III Regulation.
The decision ordering the transfer of the Applicant to the Bulgarian authorities was illegal and was therefore to be annulled, and consequently the decision placing him in administrative detention for five days was to be annulled as well.
Outcome:
The decision dated 27 February 2016 was annulled.
Subsequent proceedings:
A similar decision was given by the Administrative Tribunal of Versaille on the 26 December 2016 relating to a female applicant originating from Turkey. The Tribunal concluded that if the applicant were to be transferred to Bulgaria she risked not benefiting from an effective examination of her application and faced a real risk of an Article 3 violation.
Observations/comments:
This case summary was done by Linklaters LLP.
Relevant International and European Legislation:
Other sources:
Pro Asyl report dated December 2015 “Humiliated, ill-treated and without protection – refugees and asylum seekers in Bulgaria”
Amnesty International report dated 2015 relating to ill-treatment of asylum seekers in Bulgaria
Bulgarian Helsinki Committee alerts dated 29 October 2015 and 15 March 2016