France – Council of State, 11 January 2010, Mr. & Mme. A. v Prefect of Pyrénées-Orientales, No 335277
| Country of Decision: | France |
| Country of applicant: | Russia (Chechnya) |
| Court name: | Council of State (Urgent applications – juge des référes) |
| Date of decision: | 11-01-2010 |
| Citation: | No 335277 |
Keywords:
| Keywords |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is a concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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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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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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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:
Art 3 and Art 15 Dublin Regulation are only applicable if there exist compelling reasons to believe the receiving country is incapable of welcoming asylum applicants in appropriate conditions or if the applicants can prove that they personally risk being subjected to ill treatment or not benefitting fully from an effective right to asylum. In this case, the applicants had not demonstrated they were personally victims of ill treatment in Poland. Poland was considered to offer sufficient guarantees against deportation and for an effective and impartial asylum procedure.
Facts:
The applicants, a Chechen family of two parents and two children, applied for asylum at the Hérault prefecture on 22 September 2009. On 6 October, the Prefect denied them the provisional authorisation to stay in France on the grounds that they had already applied for asylum in Poland on 24 December 2007, in Sweden on 16 December 2008 and in Denmark on 16 March 2009. In accordance with the Dublin Regulation, the Prefect asked Poland to take responsibility for the applicants’ asylum procedures. Poland agreed to the request in a decision dated 27 November 2009 and the Prefect initiated a removal procedure against the applicants on 17 December 2009.
The applicants appealed to the Montpellier Administrative Tribunal. They asked the Tribunal to suspend the removal procedure and requested that the Prefect re-examine their application for a temporary residence permit. The arguments cited where:
- the contested decision is a serious and manifestly illegal infringement of their right to asylum;
- the applicants were victims of degrading treatment in Poland and consequently will not be safe there;
- the contested decision provides for a return of the applicants to their country of origin, Russia, where they will be exposed to persecution due to their Chechen origins;
- the contested decision does not mention the delays for transfer or the modalities of transfer to Poland and, therefore, ignores Art 20 Dublin Regulation;
- the decision was notified to the applicants in French and therefore not in a language which they understand. This violates Art 3 of the same Regulation;
- the applicants did not attempt to evade the authorities in the different countries where they had made their asylum applications (Poland, Sweden and Denmark). In any case, Denmark is the responsible country for examining their asylum application.
The Administrative Tribunal rejected their appeal. The applicants appealed to the Council of State, which is the highest administrative court in France.
Decision & reasoning:
The Council of State had to determine:
- Whether the decision to transfer the applicants to Poland was lawful and whether the applicants’ right to information was respected during the procedure;
- Whether the decision to transfer the applicants to Poland mentioned the delays and modalities of the transfer to Poland, in accordance with the provisions of Art 20 Dublin Regulation.
- Whether the applicants’ transfer to Poland was putting them in danger (the applicants alleged they were subjected to ill-treatment during their stay in Poland) and denied them their right to asylum (the applicants claimed that, if transferred to Poland, they may be deported to Russia even before their asylum claim could be examined in a fair and impartial manner).
On the first point, the Council of State concluded that the claimants were well informed throughout the entire procedure. The Council of State affirmed that the notification of a Dublin transfer decision was made in Russian. The right to information of the claimants was more than respected, as they were assigned a Russian interpreter during the hearing and they had been given time to present their submissions. Their right to information and the right to a fair hearing were therefore respected. On the second point, the Council of State noted that the obligation to indicate delays regarding the implementation of the transfer had been respected. Finally, on the third point, the Council of State recalled that Poland is a member of the EU, party to the Geneva Convention and has ratified the European Convention on Human Rights. Poland, therefore, had to be presumed able to welcome asylum applicants in good conditions. The Council of State found that the decision to transfer the applicants did not constitute a grave and manifestly illegal infringement of their right to asylum because Poland offers sufficient guarantees against deportation and for an effective and impartial examination of their asylum applications. The decision to transfer the applicants therefore did not constitute a violation of the principle of non-refoulement.
The Council of State concluded that the applicants could not refer to Art 3(2) or Art 15 of the Dublin Regulation because they did not demonstrate they were personally victims of ill treatment in Poland. According to the Council of State, Art 3 and Art 15 apply only if there are compelling reasons to believe the receiving country is incapable of welcoming asylum applicants in appropriate conditions or if the applicants can prove that they personally risk being subjected to ill treatment or to not benefit fully from an effective right to asylum.
Outcome:
The appeal was rejected.
Observations/comments:
This summary has been reproduced and adapted for inclusion in EDAL with the kind permission of Forum Réfugiés-Cosi, coordinator of Project HOME/2010/ERFX/CA/1721 "European network for technical cooperation on the application of the Dublin II regulation" which received the financial support of the European Refugee Fund.
