France - Council of State, 11 October 2011, Mr. A. and Ms. A., n°353002
Keywords:
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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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Request that charge be taken
Description
Formal request by one Member State in which an application for asylum has been lodged, where it considers that another Member State is responsible for examining the application, calling upon that other Member State to take charge of the applicant. It should be made as quickly as possible and in any case within three months of the date on which the application was lodged within the meaning of Article 4(2) Dublin II Regulation and subject to the conditions laid down in Articles 17 to 19. |
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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:
The asylum applicant who, in the case of a supervised departure, does not appear at the boarding of his/her flight where his/her pre-transportation to the airport was not ensured, cannot be considered as having absconded.
Facts:
The applicants, from Russia, arrived in France in January 2011, together with their five children. They requested a temporary residence permit from the Prefecture which rejected their requests on the ground that, according to the Dublin II Regulation, Poland was the State responsible for the examination of their asylum claims. Since the Polish authorities accepted to ‘take back’ the applicants on the 30 March 2011, the Prefecture decided their transfer by an order on the 29 April 2011. The Prefecture then organised their transfer to Poland and booked a flight for the 18 August 2011. On the 18 August 2011, the applicants did not appear at Roissy airport for the boarding of the flight to Warsaw booked by the Prefecture. By a letter dating from the 29 August 2011, the Prefecture informed them that the payment for their accommodation would end within a maximum of 15 days and this was effectively the case. In addition, the Prefecture considered that the applicants absconded and informed the Polish authorities that the time limit for the transfer was extended to 18 months, in accordance with Article 20 of the Dublin II Regulation.
They challenged this decision before the administrative tribunal which rejected their claim. They requested the Council of State, under summary proceeding, to quash the ruling of the administrative tribunal and to order the Prefecture to provide them with accommodation within 24 hours.
Decision & reasoning:
The Council of State considered that according to Article 7 of Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Dublin II Regulation, in the case of a supervised departure, as in the present case, the Member State which is responsible for the transfer had to make the practical arrangements and had to go with the asylum applicant all the way to the boarding to his/her place of destination. This included the payment of the cost of transportation in order to reach the State responsible for the examination of the asylum application from French territory, as well as, when applicable and necessary, the cost of pre-transportation from the place of residence of the applicant to the place of boarding.
Since the Prefecture did not effectively ensure the pre-transportation of the applicants from their place of residence (Nantes) to the Roissy airport (Paris) and since the applicants did not have the means to go there by their own resources, the Council of State found that they could not be considered as having intentionally escaped from the enforcement of the transfer and as having absconded.
In these conditions, the expiry of the six month time-limit of acceptance of the taking charge of the applicants by the Polish authorities leads to the responsibility of the examination of their asylum applications being now transferred to the French authorities.
The Council of State also considered that denying the benefit of legal measures aimed at guaranteeing decent material reception conditions to asylum applicants pending the examination of their case amounted to a serious and manifestly infringement of a fundamental freedom.
Outcome:
The order of the administrative tribunal was quashed.
The Prefecture was ordered to provide, within 24 hours of the notification of the present decision, accommodation for the applicants and their children until a decision has been made on their asylum application.
Observations/comments:
According to the position of the Council of State, and pending a decision of the CJEU (see decision of the Council of State, CE, 7 avril 2011, Cimade et Gisti, n° 335924, also summarised in this database), the benefit of material reception conditions must be ensured until the effective transfer of the applicant to the country of destination, except if the applicant escapes from the enforcement of the transfer.