France - Administrative Court of Nantes, 22 June 2015, No. 1505089
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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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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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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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 Administrative Court judged that a full and rigorous examination of the consequences of transferring the applicant back to Italy is required, given the delicate and evolving situation in the country. As this was not done the prefecture’s decision to refuse to examine the asylum application and send her back to Italy was annulled. The case was remitted to the prefecture for re-examination.
Facts:
On the 15 June the applicant applied for a temporary residence permit in France, in order to introduce a request for asylum. On the 16 June 2015, the prefecture of Loire-Atlantique refused to grant the temporary residence and took the decision to send the applicant back to Italy, the Member State responsible for her application. In addition, the applicant received an obligatory “residence assignation” at the prefecture’s department for forty-five days.
On 17 June 2015, the applicant introduced a request to the Administrative Court asking, amongst others, for the annulation of these decisions.
In particular, in response to the refusal, the applicant argued against its legality, first because it had not been established that it had been signed by the competent authority. Secondly, the applicant alleged that the prefecture had not considered all the elements of the case, as the decision was not sufficiently motivated, in fact and in law.
In addition, the applicant raised concerns about procedural deficiencies. Notably, she had not received information on her rights before being fingerprinted, required by the Eurodac regulation (art. 18) nor had any information relating to article 4 of the Dublin III Regulation been furnished. In addition the applicant advanced that the transfer decision to Italy was taken without holding a personal interview required under article 5 (1) of the Dublin III regulation.
Moreover, the applicant pointed out that the prefecture had not investigated the situation in Italy, to verify if derogations would have been required, in compliance with art. 3 and 17 of Dublin III as well as with regards to article 3 European Convention of Human Rights (ECHR).
Furthermore, according to the applicant, the decision to assign residence was taken without due regard to French asylum legislation (Code of the Entry and Stay of Foreigners and Asylum Law), as there was no risk of absconding, necessary to assign residence.
On 19 June 2015 the prefecture of the Loire-Atlantique rejected the applicant’s allegations.
Decision & reasoning:
First, the Administrative Court clarifies that it is not competent to rule on the conclusions concerning the refuse and issuance of a temporary residence permit; or on the asylum application. These elements are, therefore, not discussed in the decision.
However, with regards to the question of transfer, the Administrative Court specifies that art 3 (2) of the Dublin Regulation obliges a Member State to avoid transfers of asylum applicants to the designated responsible country, if there are ‘substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions’.
On this basis, the Court notes that, given the delicate and evolving situation in Italy, regarding migrants’ reception, every transfer decision under the Dublin Regulation, should be cautiously taken, after a full and rigorous examination of the consequences for the applicant upon transfer.
In this case, the Court concludes that the prefecture had not carried out a full and rigorous examination, as it limited justifications to general and stereotyped motivations, notably that the applicant had not declared being at risk of inhuman and degrading treatment if returned to Italy; and the absence of circumstances preventing the applicant to reach Italy, such as the fact that she has no family or relatives in France and in Europe.
Therefore, the Court concludes that the decision to transfer the applicant to Italy should be annulled, and, consequently, so should the “residence assignation”. Finally, it obliges the prefect of Loire-Atlantique to re-examine the situation of the applicant and take a new decision, within one month.
Outcome:
Appeal granted, annulment of the decision.
Observations/comments:
The judge considers that he is not competent to examine the other allegations brought forward by the applicant, and rejected by the prefecture, against the decision of refusing to grant her a temporary residence, thereby essentially preventing the applicant from applying for asylum.
Indeed, the applicant raised many concerns about procedural deficiencies related to the asylum system in France, which were unfortunately not covered in the Court’s judgment. For instance, according to the applicant, the decision of refusal of a temporary residence permit and return to Italy was taken without informing the applicant before being fingerprinted of her rights and without holding the interview required by article 5 (1) of the Dublin III regulation. Furthermore, the decision of “residence assignation” was taken without due regard to French asylum legislation which requires a risk of absconding for said assignation to be applied.
Overall this case raises serious questions concerning the procedural guarantees associated with registering an asylum application with the prefecture in France.