France – Council of State, 3 June 2005, Mr.A. v Minister of Interior, No 281001
Keywords:
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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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." |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
Headnote:
Although the applicant, an adult without children, did not fall within the definition of a family member under Art 2(i) Dublin Regulation and could therefore not rely on Art 7 and Art 8 to defeat a transfer order, his links to family members in France could justify applying Art 3(2) or Art 15. In such a case, the definition of a family member should not be interpreted in the restrictive sense of Art 2(i). In order to apply a broader definition, the applicant must provide evidence of the intensity of the links to the family. In this case, the applicant failed to provide such evidence.
Facts:
The applicant, a Mongolian national, left Mongolia on 11 October 2004. He passed through Russia and then Austria, where he was arrested and detained for one and a half months. He applied for asylum in Austria and received a negative decision. After being released by Austrian authorities, the applicant went to Italy before entering France on 20 December 2004. Other members of his family (his parents, a sister and a brother) had already applied for asylum and been granted temporary residence permits in France.
The applicant’s application for asylum in France was registered by the OFPRA (Office Français de Protection des Refugiés et Apatrides) on 8 March 2005. On 21 March 2005 the Prefecture of Pyrénées Orientales removed his temporary residence permit in accordance with Art 16 Dublin Regulation and, thereby, allowed for a withdrawal of the OFPRA from the case on 29 March 2005. On 21 April 2005 the Prefect decided to transfer the applicant to Austria in accordance with the Dublin Regulation.
In the meantime, the applicant sent a written request to the Prefect asking for a review of the decision to remove his temporary residence permit. The Prefect refused his request on 27 April 2005 on the ground that Austria is the responsible state. The applicant submitted an appeal for interim measures to the Administrative Tribunal of Montpellier (juge des référés - the latter can only take provisory decisions for urging cases before a proper examination is conducted). He claimed his transfer to Austria, without his asylum application having been examined by the French authorities, would seriously and manifestly violate his right to asylum. This was even more so because his parents, sister and brother had been granted temporary residence permits in France and have applied for asylum. The applicant argued the decision of the Prefect violates articles 3 and 15 of the Dublin Regulation. The tribunal rejected the appeal and the applicant appealed to the Council of State.
Decision & reasoning:
The Council of State had to determine whether the prefect had violated the Dublin Regulation by deciding not to examine the asylum application even though the applicant’s parents, brother and sister were asylum applicants in France.
The Council of State noted Art 7 and Art 8 of the Dublin Regulation hold, as a criterion in determining the responsible Member State, the presence of family members of an asylum seeker in a Member State. Nevertheless, the Council of State conclude that, in this case, Art 7 and Art 8 cannot be applied. The applicant is an adult person, celibate and with no children, and therefore does not fall into the definition of a family member in Art 2(i) of the Dublin Regulation.
Although the applicant’s situation does not fall under the scope of Art 7 and Art 8, the French authorities should have taken into account, when making their decision, the derogatory clauses (Art 3(2) and Art 15) and the family links of the applicant with family members present in France. The notion of family should, in this case, be understood not in the strict sense of Art 2(i) of the Dublin Regulation, but in a broader sense. The Council of State concluded that to apply a broader definition of a family member, the applicant must provide evidence of the intensity of his links with the family members present in France. In this case, the applicant did not provide such evidence.
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.
