France - Administrative Court of Lyon, 6 October 2014, M. M / Préfet du Rhône, No 1407555

Facts:

On 17 June 2013 M.M, a citizen of Kosovo, entered Hungary and applied for asylum. While his asylum application was pending, M.M was held by Hungarian authorities. On 25 September 2013, M.M entered France after leaving Hungary due to the conditions under which he was retained.

On 1 October 2014, the Préfet du Rhône issued two decisions: (i) to surrender M.M to the Hungarian authorities and (ii) hold M.M under administrative detention in the interim.

M.M asked the Administrative Court of Lyon to :

·         Grant him temporary legal aid;

·         Cancel the decisions of the Préfet du Rhône;

-         Order the Préfet du Rhône to re-examine his application to remain in France on the basis of the right to asylum; and

Order the Préfet du Rhône to grant him a provisional residence permit.

Decision & reasoning:

·         On the request for temporary legal aid

Under article 20 of French act of 10 July 1991 on judicial aid, the competent court may grant temporary legal aid in urgent cases. Here, the Administrative court of Lyon found that M.M’s case was sufficiently urgent to warrant temporary legal aid. As a result, M.M was granted temporary legal aid.

·         On cancelling the decisions of the Préfet du Rhône

(i) On whether to return M.M to the Hungarian authorities

As a preliminary matter, the French Code for Entry and Residence of Foreigners and the Right to Asylum (CESEDA) provides that an asylum applicant’s request for a residence permit can be denied if another Member State has jurisdiction. However, each Member State retains the sovereign right to consider an asylum application even when the application falls outside of its jurisdiction. Consequently, although Hungary had jurisdiction, the Administrative Court of Lyon was able to review M.M’s application by way of its sovereign right.

Under Hungarian law, immigration authorities commence a deportation procedure for applicants who enter the country unlawfully, which runs parallel to an applicant’s asylum application. Expulsion is suspended for first time applicants until the review of their asylum application has been completed. However, in the event that an applicant submits a second application, the deportation procedure is not suspended and an applicant may be deported prior to a ruling on his asylum application.

Here, the Administrative Court of Lyon noted that if M.M were surrendered to Hungarian authorities, he would need to file a second asylum application because under Hungarian law, an asylum application is terminated when an applicant leaves the country. As a second time applicant, the Administrative Court further noted that M.M would be at risk of being deported to Kosovo since expulsion would not be suspended.

The Administrative Court held that, in light of the expulsion rules for second time asylum applicants in Hungary, the decision of the Préfet du Rhône to surrender M.M to Hungarian authorities would amount to a serious and unlawful interference with M.M’s constitutionally guaranteed right to apply for refugee status. As a result, the Administrative Court vacated the decision of the Préfet du Rhône to return M.M to Hungarian authorities.

(ii) On whether to keep M.M under administrative detention

As a consequence, the decision to place M.M under administration detention was also cancelled.

·         Provisional residence permit

The Court found that its ruling did not necessarily imply that a provisional residence permit should be granted and remanded to the Préfet du Rhône to re-examine M.M’s provisional residence application.

Outcome:

The contested decisions of the Préfet du Rhône to surrender M.M to Hungarian authorities and place him under administrative detention in the interim were cancelled and M.M’s application for the provision of a residence permit has been remanded to the Préfet du Rhône. 

Observations/comments:

This case summary was completed by Linklaters LLP.