France – Council of State, 28 May 2010, Mr. A. v Minister of Immigration, No 339624

Facts:

The applicant left Spain on 16 October 2009 for his country of origin, the Democratic Republic of Congo. He arrived in France on 18 February 2010. He applied for asylum the following day in the Préfecture du Rhône. The Prefect refused to grant the applicant a temporary residence permit because, according to the Dublin Regulation, Spain was responsible for his asylum procedure. On 17 March 2010, the Spanish authorities agreed to France’s request to transfer the applicant. 

The applicant appealed to the juge des référés of the Administrative Tribunal of Lyon, stating France should be responsible for the examination of his asylum application and, therefore, France must grant him temporary residence permission. The applicant argued the Dublin Regulation did not apply in his case because he left the territory of the EU Member States for a period lasting more than 3 months (cf. Article 4(5) of the Dublin Regulation). The Tribunal rejected the application in its decision on 8 May 2010 and the applicant appealed to the Council of State.

Decision & reasoning:

The Council of State had to determine whether the evidence presented by the applicant in relation to his absence from EU territory for more than 3 months was sufficient in order to apply Article 4(5) of the Dublin Regulation and whether the French authorities were responsible for processing the asylum application. The Council recalled that Article 4(5) of the Dublin Regulation states the primary responsibility for the consideration of an asylum application rests with the Member State to whom it was first submitted. That State is responsible for readmitting the asylum seeker if he is on the territory of another Member State, except in cases where the applicant has left the EU territory for a period of at least 3 months. 

The Council found the applicant did not provide sufficient evidence that he was outside the EU territory for more than 3 months. The documents and testimony presented by the applicant (a medical certificate and a medical report dated 6 November 2009 by a doctor at the Kitambo General Hospital in Kinshasa stating that he was hospitalised there from 24 October to 5 November 2009; a copy of a legal assistance certificate dated 22 January 2010 by a lawyer of the Kinshasa Bar attesting that he was incarcerated in a penitentiary and re-educational centre of Kinshasa on 12th January 2010; a statement provided by a friend affirming that he gave the applicant shelter at the beginning of November 2009) were insufficient to prove that he had been outside of the territory of the Member States for more than 3 months. According to the court he was unable to prove the date of departure from Spain nor the date of arrival in France. The Council concluded that evidence of absence from the territory of a Member State should include not only the evidence of absence itself but also evidences of the exit and entry dates in relation to the period of absence, which was missing in this case.

Outcome:

The appeal was rejected and the decision of the Administrative Tribunal was confirmed.

Observations/comments: