Luxembourg - Administrative Tribunal, 36547, 15 July 2015
| Country of Decision: | Luxembourg |
| Country of applicant: | Ivory Coast |
| Court name: | Administrative Tribunal, Second Chamber |
| Date of decision: | 15-07-2015 |
| Citation: | 36547 |
Keywords:
| Keywords |
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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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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
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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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Request to take back
Description
Formal request by one Member State that another Member State take back, under the conditions laid down in Article 20 of the Dublin II Regulation: - an applicant whose application is under examination and who is in the territory of the requesting Member State without permission; - an applicant who has withdrawn the application under examination and made an application in the requesting Member State; - a third-country national whose application it has rejected and who is in the territory of the requesting Member State without permission. |
Headnote:
In order to justify detention, the Ministry must establish that there is a real risk that the applicant will abscond and that this is not simply a presumption. The results of the bone tests can be put to the side if the judge believes that it is impossible to determine the age of the applicant in this manner.
Facts:
On 06 September 2015, the applicant applied for international protection in Luxembourg. On 01 July 2015, the Minister informed the applicant that, according to the Dublin Regulation, Luxemburg wasn’t competent to examine the applicant’s request but that Spain was. The applicant was placed into administrative detention that same day. On 06 July 2015, the applicant appealed the Ministry’s decision to transfer them to Spain.
Decision & reasoning:
The tribunal noted that a Member State is responsible for an unaccompanied minor’s application if it is in the child’s best interest.
The tribunal decided that bone testing could not determine, beyond doubt, the age of the applicant, it therefore decided to dismiss it and to only base itself on the applicant’s birth certificate to establish the applicant’s minority.
According to the judge, administrative detention is only justifiable on the condition that the applicant is at a real risk of absconding. Even though this measure cannot be explicitly found in the law of 05 May 2016, it may be deduced from Article 10 § 1 d) of that law, thus applying administrative court jurisprudence.
The judge listed the number of cases where there was a real risk of absconding on the part of the applicant, on the basis of articles 111 of the law of 2008 and 10 of the law of 2006.
On the basis of article 28 of the Dublin Regulation, the Ministry must establish in what manner the applicant is at real risk of absconding. In other words, it must establish to a higher degree than simple presumption how the applicant is likely to abscond, which the Ministry was unable to do.
Outcome:
The tribunal found that the appeal was not manifestly unfounded.
Observations/comments:
Even though there are cases where the risk of absconding is presumed, this does not relieve the Ministry from its obligation to establish how this risk is stronger than a mere presumption. Furthermore, with regards to the bone test, the judge may decide to discard this document if he feels that it does not determine beyond doubt the age of the applicant.
The original version of this summary was written by Passerell a.s.b.l. and the translation compelted by Jessica Pradille.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Luxembourg - o Law of 29 August 2008 : articles 34 |
| 111 |
| Luxembourg - o Law of 05 May 2006 : article 10 |