France - Council of State, 20 May 2010, Ministry of Immigration vs. Mr. A. and Ms. A., n°339478
| Country of Decision: | France |
| Court name: | Council of State/ Conseil d’Etat, 20 May 2010, Ministry of Immigration vs. Mr. A. and Ms. A., n°339478 |
| Date of decision: | 20-05-2010 |
| Citation: | Conseil d’Etat, référé, 20 mai 2010, Ministère de l’immigration c/ M.A. et Mme A., n°339478 |
Keywords:
| Keywords |
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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.” |
Headnote:
In the particular circumstances of the present case, the transfer of the asylum applicants to Greece would lead to a serious and manifestly illegal infringement of the right of asylum.
Facts:
Mr. A and Ms. A. were notified of decisions from the Prefecture refusing them the right to remain in France and returning them to Greece, which had accepted to take charge of them. The administrative tribunal, under summary proceedings, suspended the implementation of these decisions and ordered the Prefecture to re-examine, within a period of five days, the applicants request to be allowed to remain in the territory. The Ministry of Immigration challenged this ordinance.
Decision & reasoning:
The Council of State recalled the internal legal provisions relative to the right of asylum applicants to remain in France, in particular Article L.741-4-1° Ceseda which allows for refusal of the right to remain when another Member State is responsible for examining his/her asylum application according to the Dublin II Regulation. It also recalled the provisions of Article 3.4 of this Regulation.
Regarding the treatment of their right to asylum by the administration, the Council of State considered that there was no manifest illegality, even though the applicants were not expressly informed about the case - when Greece would not follow up on its acceptance to take them back and about the six month delay after which, in this case, France would be responsible for examining their application according to Article 19 of the Dublin II Regulation. They were informed, in written and in their language, that the Prefecture would implement the procedure to transfer them to Greece; this information included details about the procedure and about delays in implementation; when these decisions were notified, they were assisted by an interpreter paid by public funds who handed them documents concerning their rights and remedies.
Regarding the transfer to Greece, the Council of State firstly stated that general documents concerning the implementation of asylum rules by the Greek authorities were not sufficient to establish that the transfer of an asylum applicant to Greece would, in itself, constitute a serious infringement of the right to asylum. The Council of State added that it is however up to the administration to assess, in each case, in light of the documents which are presented and under the control of the judge, whether the conditions in which a particular case is treated by the Greek authorities comply with all the guarantees required by the respect of the right of asylum.
In the present case, in light of the medical certificates and several detailed testimonies concerning the conditions in which the applicants and their children were treated by the Greek authorities when they transited through this country, the Council of State considered that the lack of respect, by these authorities, of the guarantees required by the respect of the right of asylum must, as far as they are concerned, be regarded as established.
The Council of State therefore concluded that, in the particular circumstances of the present case, their transfer to Greece would lead to a serious and manifestly illegal infringement of the right of asylum, which constitutes a fundamental freedom.
Outcome:
The Ministry’s appeal was dismissed.
Observations/comments:
This decision was warmly welcomed by NGOs which had for a long time been recommending to the French authorities to take into account several reports from international organisations (such as UNHCR, Council of Europe) warning against the catastrophic state of the asylum system in Greece.
Nevertheless, other administrative judgments, both after and before this decision, continued to show variable assessments of the issue of transfer of asylum applicants to this country.
Recently, the European Court of Human Rights, in the case M.S.S. (ECHR, 21 January 2001, n°30696/09, M.S.S. vs. Belgium and Greece), considered that the conditions in which asylum applicants were taken in charge in Greece constituted an inhuman and degrading treatment which hindered their transfer under the Dublin II Regulation.
This decision from the ECHR led the French government to suspend the transfers of asylum applicants to Greece. By a letter from the Ministry dating from 28 February 2011, Prefectures were instructed to suspend, until further notice, transfers to Greece and to apply the sovereignty clause provided by Article 3.2 of the Dublin II Regulation.
Source : Dictionnaire Permanent du Droit des Etrangers, Bulletin 197, February 2011, and Bulletin 198, March 2011.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.741-4-1 |