France – Council of State, 24 December 2010, Mr A, No 345199
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. |
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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:
This was an appeal against the decision to transfer an asylum applicant to Poland. The Council of State rejected the applicant’s claim that he was not informed about the Dublin procedure in a language intelligible to him, as the applicant had indicated he understood Russian and an interpreter had been provided. Moreover, the circumstances necessary to apply Art 3(2) Dublin Regulation had not been met.
Facts:
The applicant applied for asylum at the prefecture of Gironde in France on 8 July 2010. While filling in his application, the applicant was informed that a Dublin procedure with Poland had already been initiated and the Polish authorities had accepted the French authorities’ transfer request. The Prefecture of Gironde therefore refused to issue a temporary residence permit for the purpose of applying for asylum. On 24 November 2010 the Prefect of Pyrénées Atlantiques confirmed the transfer to Poland.
The applicant appealed to the Administrative Court of Pau. The appeal was rejected and the applicant appealed to the Council of State, requesting interim measures (juge des référés). The applicant claimed the decision was unlawful, as he was not informed of the application of the Dublin Regulation in a language intelligible to him.
Decision & reasoning:
The Council of State found the applicant’s claim that he was not informed of the application of the Dublin Regulation in a language intelligible to him could not be sustained as the applicant had indicated that he understood the Russian language and an interpreter had been provided. The circumstances necessary to apply the derogation provided by Art 53-1 of the Constitution and Art 3(2) of the Dublin Regulation (CE) 343/2003 had not been met in this case. The refusal to provide a temporary residence permit and the decision to transfer the applicant to Poland, therefore, did not constitute a manifest and serious infringement of asylum law.
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.
