France - Administrative Court of Appeal of Lyon, 13 March 2018, nos 17LY02181 – 17LY02184

Facts:

The applicants, a wife, husband and their three children from Afghanistan, had entered France and applied for asylum at the Rhone prefect after transiting through Russia and Finland. Under the Dublin Regulation, the Prefect decided to transfer the applicants to Finland. This decision was later appealed to the Lyon Administrative Tribunal by the applicants. The Tribunal subsequently cancelled the Prefect’s decision, which was then appealed by the Prefect to the Lyon Administrative Court of Appeal.    

Decision & reasoning:

The Court firstly examines the applicants’ procedural history and notes that they had made an asylum application in Finland which was rejected by the Finnish authorities and which was accompanied by a return decision. The Administrative Tribunal and the Supreme Administrative Court had also rejected the applicants’ appeals against the State’s decision. An entry ban to Finland for a duration of two years was also given to the applicants. The Court holds that the rejection of an asylum claim and the existence of a return decision and entry ban do not lead to the cessation of responsibility of the requested Member State (Finland here). Article 19 of the DRIII only applies where the return decision was actually executed and the individual had left the EU territory. Any application after this would be considered a new one and a new determination procedure would follow. In this case, the Prefect was correct in stating that the Tribunal judge had incorrectly held that a return decision and entry ban given by Finland amounted to an obstacle to Finland’s responsibility for the claims.

Moving onto the substance of the applicants’ claims, the Court held that, from the information presented, armed clashes, which amount to an internal armed conflict, prevail throughout the whole territory of Afghanistan. According to the annual report of UN High Commissioner for Human Rights, the security and humanitarian situation throughout the country has not stopped getting worse over the last few years. Insurgent groups as well as governmental forces are responsible for the significant number of deliberate attacks on the civil population. Attacks which continuously rise compared to previous years. It is also clear from the documentation submitted that the situation in the region and in the city of Kabul is susceptible to being qualified as indiscriminate violence resulting from an internal armed conflict. With this in mind, the French Prefect, in deciding to transfer the applicants back to Finland where they had received a negative decision on their claim, had committed an obvious error in his assessment as to whether France was responsible for the claim despite another State being otherwise responsible. The transfer decision was thus unlawful, leading to its rejection.  

Outcome:

The Rhone prefect was not founded in his appeal against the Lyon Administrative Tribunal’s decision.

Observations/comments:

This judgment follows on from the National Court of Asylum’s decision on 9 March 2018 (no. 17045561) where the Court found that a situation of indiscriminate violence of high intensity prevailed in Kabul. In this decision the Court relied upon the multiple terrorist attacks and suicide bombings in Kabul in 2018, the information available in EASO’s Report on the Security Situation in Afghanistan and in the annual report of the UN Assistance Mission in Afghanistan, to conclude that Kabul was the Afghan city with the highest number of deaths of civilians as a result of attacks from different armed groups. Therefore, as there was serious reason to believe that the applicant, if returned to Kabul, would face a serious threat to his life solely on account of his presence there, the Court of Asylum set aside the administrative decision and granted the applicant subsidiary protection status.

A similar decision was given by the Administrative Court of Appeal of Nantes (8 June 2018) which cancelled the prefecture's decision to transfer the applicant to Belgium as well as an order assigning him to a specific residence. The Court considers that the applicant risks being chain refouled to Afghanistan since his application has been rejected in Belgium. According to the Court, the French authorities and the Administrative Tribunal had, thus, committed a manifest error in not applying Article 17 of the Dublin Regulation. Additionally, the Administrative Tribunal of Bordeaux has also cancelled a Dublin transfer to Germany (15 June 2018, n° 182410) due to the risk of chain refoulement to Afghanistan. The Administrative Tribunal of Rouen (31 May 2018, n° 1801386) and the Adminstrative Tribunal of Dijon (22 June 2018, n°1801579) have also cancelled transfers to Austria and Germany respectively, on similar grounds. 

Other sources:

Annual report of UN High Commissioner for Human Rights

UN Security Council Resolution 2210