France - Council of State, 17 March 2010, Mr. A., n°332585
Keywords:
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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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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. |
Headnote:
The failure to respect the procedural guarantees provided under Article 3.4 of the Dublin II Regulation constitutes a serious and manifestly illegal infringement of the right of asylum.
Facts:
Mr. A. requested a temporary residence permit from the Prefecture in order to lodge an application for asylum to the French Office for the Protection of Refugees and Stateless Persons (Ofpra). In a decision dating from 16 September 2009, the Prefecture refused and decided to transfer him to Greece in accordance with the Dublin II Regulation. Under summary proceedings, the administrative tribunal rejected his claim to suspend this decision and to order the Prefecture to deliver him a temporary residence permit. Mr. A. requests the Council of State to quash the ordinance from the administrative tribunal and to make a decision about the case.
Decision & reasoning:
The Council of State decided to make a decision about the case under summary proceedings.
The Council of State recalled the provisions of Article 3.4 of the Dublin II Regulation which stipulates that “The asylum seeker shall be informed in writing in a language that he or she may reasonably be expected to understand regarding the application of this Regulation, its time limits and its effects”.
The Council of State stated that according to the case file, the applicant was not informed in writing in a language that he understood regarding the conditions of application of the regulation, its time limits and its effects. The Council of State therefore considered that by failing to enable the applicant to benefit from the procedural guarantees provided under Article 3.4 of the Dublin II Regulation, the Prefecture created a serious and manifestly illegal infringement of the right of asylum which constitutes a fundamental freedom.
Outcome:
The ordinance of the administrative tribunal was quashed. The execution of the decision of the Prefecture which refused to deliver a temporary residence permit and which decided to transfer the applicant to Greece was suspended. The Council of State ordered the Prefecture to re-examine the request for a temporary residence permit within 15 days.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |