France – Council of State, 24 September 2018, N° 420708

Facts:

The applicants, Mrs A…Kahsay et Mr B…Teweldebrehan, Eritrean nationals, claimed asylum in France. Requests to be taken back were made to the Italian authorities after a Eurodac hit. They were accepted under the terms of Article 25 of the Dublin Regulation on 5 and 6 April 2017.

The prefect of the Alpes-Maritimes consequently issued return orders on 18 May 2017.

The Administrative Tribunal of Nice (TA) annulled those orders on 2 June 2017 and ordered the prefect to process the applicants’ asylum claim and to provide them with a receipt allowing them to remain on French territory.

Following the appeal lodged by the prefect, the administrative Appeals Court of Marseille (CAA) annulled the judgements of the TA and rejected the applicants’ claim, deciding that the prefect had not made a manifest error of law.

Mrs A…Kahsay et Mr B…Teweldebrehan unsuccessfully presented themselves once again before the prefecture to file an asylum claim on 20 April 2018. Hence, they referred the case to the interim relief judge of the TA on the grounds of Article L. 521-1 of the administrative code of justice. Their claim was also rejected.  

Hence, the applicants appealed before the interim relief judge of the Council of State.

Decision & reasoning:

They argue that the 6-month deadline in order to proceed to a transfer, after which France would become the responsible Member State to examine the asylum claim on the grounds of Article 29§1 of the Dublin Regulation 604/2013, began running on the date the TA annulled the transfer orders issued by the prefect, that is to say on 2 June 2017. They argue it did not begin running on 4 April 2018, the date of the CAA’s decision, as it was claimed when they last attempted to have their asylum claim registered but refused owing to the non-expiry of the delay.

The Council of State first recalls the terms of Article L. 521-1 of the administrative code of justice, according to which an interim relief judge rules within 48H, when it is justified by grounds of urgency, in order to safeguard a fundamental liberty which has been seriously and manifestly breached by a public, legal and moral person or by a private and legal organism in charge of a public service. The Council observes in this case that a transfer could occur at any time, which satisfies the urgency requirement.

Regarding the existence of a serious and manifest breach of a fundamental liberty, the Council recalls Article 29§1 mentioned above, providing for the 6-month deadline within which a state has to proceed with the asylum applicant’s transfer to another responsible Member State. It specifies on this matter that “the delay begins running on the date of the acceptance by the other Member State to take charge or to take back the examination of the asylum claim, or on the date of the final decision on the appeal or its revision when a suspending effect was granted according to Article 27, paragraph 3”.

The Council also recalls Article L. 742 of the code of entry and stay of foreigners and the right to asylum (CESEDA) relating to the procedure identifying the Member State responsible of the examination of an asylum claim to conclude that, in the light of the provisions mentioned above, the introduction of an appeal against the decision issued by the prefect led to the interruption of the 6-month deadline. The latter began running on the date of the final TA’s decision on this appeal. The Council adds that subsequent appeals of this judgment do not interrupt this newly-established delay.

Hence, it concludes that the return orders were issued by the prefect within the initial 6-month delay, which was interrupted by the appeal lodged by the applicants. It began running again from the date the TA issued its judgement, on 2 June 2017. The annulment of the latter by the CAA does not modify this delay.

Consequently, the Council concludes that the prefect seriously and manifestly breached the fundamental liberty of the right to asylum by refusing to register the applicants’ asylum claim on 20 April 2018, despite the responsibility of France to examine their claim owing to the expiry of the delay. The interim relief judge of the TA also wrongly rejected the applicants’ claim.

Outcome:

Appeal granted

The Council of State orders the annulment of the ordinance issued by the interim relief judge of the TA of Nice of 2 May 2018. It also orders the prefect to register the applicants’ asylum claim and to provide them with the relevant certificates and files for the purposes of the French immigration authorities within 15 days.

The State will also pay the sum of 2000€ to the applicants on the grounds of Article L. 761-1 of the administrative code of justice.