France - Council of State, Ord. ref. 29 August 2013, no. 371572 et al.

Facts:

The Applicants, originally from Kosovo, had been detained at the Hungarian border. They were placed in the Debrecen centre and lodged asylum claims in Hungary. They claimed that they had then returned to Kosovo before reaching France where they sought asylum from the Prefecture of Haute-Garonne. Since Hungary had charge of their asylum claims, the Prefecture refused to grant them residence permits for reasons of asylum in view of their readmission to Hungary in the context of the “Dublin II” procedure.

The Administrative Court in Toulouse rejected their claims, namely since it was for the Prefect to grant them residence for reasons of asylum. The Applicants asked the Council of State to quash this decision.

Decision & reasoning:

The Council of State began by reiterating that Article L.741-4, paragraph 1 of Ceseda [Code on the admission and residence of aliens and on the right of asylum] allows for residence in France to be refused to an asylum seeker when the asylum claim is the responsibility of another EU Member State in accordance with the Dublin II Regulation. The last paragraph of that Article, however, provides for the sovereign right of the State to grant asylum to any person who should find themselves in that situation, in accordance with Article 3(2) of the Regulation.

The Council of State went on to underline that Hungary is a member of the EU and party to the 1951 Refugee Convention and to the European Convention on Human Rights. It held that general documentation relating to the way in which asylum regulations were applied by the Hungarian authorities, in particular the UNHCR Report of 24 April 2012, were not sufficient to establish that the readmission of an asylum seeker to Hungary of itself constituted a serious breach of the right to asylum.

However, referring to the written and oral accounts of the Applicants as to the conditions to which they had been exposed in the Debrecen centre and their attempt to have their refugee status recognised in Hungary, the Council of State held that a serious risk existed that their asylum claims would not be dealt with by the Hungarian authorities in accordance with all the guarantees required by the respect of the right to asylum.

The Council of State said that the Prefectural decisions to refuse residence and readmit the asylum seekers to Hungary posed a serious and manifestly unlawful breach of their right, which was guaranteed under the Constitution, to seek refugee status. Therefore the Council of State instructed the Prefect to permit them residence due to the serious risk that a return to Hungary would pose, whereas the French administrative authorities had simply ruled that that country was, generally speaking, obliged to respect asylum seekers’ rights as a Member State of the EU.

Outcome:

The Council of State decided to quash the order of the Administrative Tribunal of Toulouse, to suspend implementation of the rulings of the Prefect of Haute Garonne and to instruct the Prefect to grant the Applicants a temporary right of residence for reasons of asylum within 15 days.

Observations/comments:

This judgment relates to the Prefectural stage of the asylum claim procedure in France, concerning admission and residence (see Country Overview for France in the Resource section of EDAL).

See the commentary (http://revdh.org/2013/09/16/droit-asile-protection-trompe-loeil-readmission/) which notes that this judgment of the Council of State, while for the first time frustrating the return of an asylum seeker to Hungary in the circumstances of the case, raises questions concerning the jurisprudence of the CJEU (CJEU, GC, 21 December 2011, N.S. v Secretary of State for the Home Department, C-411/10 and C-493/10). This obliges Member States not to transfer an asylum seeker to another Member State where there are “systemic deficiencies” in the asylum procedure which would expose the asylum seeker to a violation of his/her fundamental rights.