France - Administrative Tribunal of Nantes, 24 September 2018, M., n°1808677.
Keywords:
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Indirect refoulement
Description
The duty of a State of non-refoulement under Article 33 of the 1951 Convention can include “indirect” or “chain-refoulement” via an alleged “safe third county”. According to the UNHCR,“indirect removal of a refugee from one county to a third country which subsequently will send the refugee onward to the place of feared persecution constitutes refoulement, for which both countries would bear joint responsibility.” |
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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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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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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." |
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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
Facts:
Following his new asylum application in France, the French authorities submitted a take back request to the German authorities under Regulation 604/2013. This request has been accepted since the Prefect of Mayenne decided by two orders to transfer M. to Germany and to place him under house arrest for 45 days as part of the transfer.
Decision & reasoning:
However, the Court points out that, without it being a subjective right that can be exercised before the authorities, it is a discretionary power that depends on the State in which the new asylum application was lodged.
Based on the various reports of British and American’s administrations and NGOs on the current internal situation in Somalia, the Tribunal notes that armed conflict between different official and unofficial forces is still ongoing in the central and southern part of the country, including in the capital, Mogadishu, where M. is from. On this information, it appears that the indiscriminate violence due to armed conflicts in Somalia should be a reason why M. can’t be returned in his country; and could be a ground to obtain subsidiary protection.
In view of the order to leave the German territory or face deportation to Somalia and the current situation there, the Court considers that the Prefect of Mayenne has committed a manifest error of assessment. The latter should have assessed the applicant's situation if returned to Somalia, in the light of this information and the possibility resulting from Article 17 of EU Regulation 604/2013 to examine the asylum application on French territory. The Court states that in this case, if according to the Dublin regulation, the first European country in which the applicant already claimed for international protection was Germany, it doesn’t prevent the French authorities to examine the claim. The French’s administrations could have examined his case based on the personal situation of the applicant who is already submitted to a risk of deportation from Germany to unsafe countries. The Court considers the decision of transfer to the German authorities therefore ungrounded also because not mentioning the “indirect refoulement”.
In addition, the two decrees were not notified to the applicant in a language known to him, depriving him of a full understanding of the procedures involved and of the ability to submit an effective remedy. The decrees may be considered unfounded and insufficiently reasoned according to the Court.
The Court annulled the transfer decisions and ordered the Prefect of Mayenne to issue a certificate of asylum application to M., which is equivalent to a temporary residence permit on French territory during the examination of his asylum application by the OFPRA organism.
Outcome:
Annulment of the prefectoral decrees concerning the transfer to Germany and house arrest.
Observations/comments:
This summary was written by Solenn Vilboux, postgraduate student at Turin University.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| France - National Asylum Court, Decision n°18011742 of 23 July 2018 |