France - Council of State, 31 December 2009, Mr. A et Ms. C., n°334865
| Country of Decision: | France |
| Court name: | Council of State/Conseil d’Etat |
| Date of decision: | 31-12-2009 |
| Citation: | Conseil d’Etat, 31 décembre 2009, M.A et Mme C., n°334865 |
Keywords:
| Keywords |
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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:
After the expiry of the six months’ time limit for transfer, the responsibility for examining the applications for asylum lies with the Member State in which these applications were lodged. This Member State shall examine the applications in accordance with national asylum law.
Facts:
Mr. A. and Ms. C., of Russian nationality and Chechen origin, left their country of origin for Poland where they lodged an asylum application. They then made their way to France where they requested a temporary residence permit in order to apply for asylum. On 3 April 2009, the Prefecture made a decision refusing to deliver them a residence permit in accordance with Article L.741-4 1° Ceseda, arguing that according with the Dublin II Regulation, Poland was the State responsible for examining their asylum application and that this country had accepted to take charge of them by a decision taken on 2 March 2009. The applicants went to the Prefecture on 23 October 2009 in order to request again a temporary residence permit which was refused on 3 December 2009. The administrative tribunal rejected their claims. The applicants requested the Council of State to quash this ordinance.
Decision & reasoning:
The Council of State recalled the provisions of Article L.741-4 1° Ceseda relative to the refusal to deliver a temporary residence permit to foreigners whose asylum application should be examined by another Member State in accordance with the Dublin II Regulation, as well as Articles 19 and 20 of this regulation relative to the procedure of taking charge and taking back of asylum applicants.
The Council of State considered that the French authorities had to ensure, within six months of acceptance by Poland of the request to take charge of the applicants, their transfer to this country so that their asylum applications could be processed. However, during these six months, the French administration did not take any measure in order to ensure their effective transfer. In particular, it did not take any measure in order to itself organise this transfer and did not supply a laissez passer or information to the applicants in order for them to travel to Poland by their own means. In addition, the applicants never tried to abscond.
In these circumstances, the Council of State therefore considered that, after the six months’ time limit for the transfer, the transfer procedure was over; responsibility for examining the asylum applications lied with the French authorities; French authorities had to examine the applications in accordance with French asylum law.
Outcome:
The Council of State quashed the ordinance of the administrative tribunal and ordered the Prefecture to deliver, within 8 days, to the applicants and their children a temporary residence permit valid until the notification of the decision of the Ofpra on their asylum application, which shall be taken under the regular procedure.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.741-4-1 |