France - Nice Administrative Tribunal, 31 march 2017, No 1701211
Keywords:
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
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Legal assistance / Legal representation / Legal aid
Description
Legal assistance: "practical help in bringing about desired outcomes within a legal framework. Assistance can take many forms, ranging from the preparation of paperwork, through to the conduct of negotiation and representation in courts and tribunals.” Legal aid: state funded assistance, for those on low incomes, to cover legal fees." |
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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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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
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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." |
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Material reception conditions
Description
“Reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.” |
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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
Both applicants seek legal assistance and to register their application for asylum, which was previously refused by the Alpes Maritimes Prefect. The interim relief judge decided that the Prefect’s refusal to provide the individuals with an application form to register their application for asylum, notwithstanding their presence within the territory and contact with the police, amounted to a serious breach of the right to asylum.
Facts:
Both applicants, Eritrean nationals with a child, had previously attempted to request asylum but had been returned by force to the Italian border. The applicants later returned to the French territory and requested the Prefect to deliver a receipt of registration of their asylum claim since they feared that by going to the Prefect they would being sent again to Italy.
Conversely the Prefect held that the applicants are to be returned to Italy, according to the Eurodac database.
Decision & reasoning:
The admissibility criteria of interim proceedings are:
Emergency: The applicants are without resources and with a child. The judge considers the vulnerability of the applicants as a criterion for the application of an interim measure.
Serious and manifestly illegal infringement of asylum law: The grounds of the Prefect ‘s decision to not register the applicants applications was based on the responsibility of Italy under Dublin for the claim. However, the Prefect did not engage in any readmission procedure under Dublin to Italy after consulting whether their data was held within the Eurodac system. Indeed, he did not substantiate why the applicants request was inadmissible.
The interim relief judge ordered the Alpes-Maritimes Prefect to register the application for asylum of both applicants within 3 days. Legal assistance was also provided.
Outcome:
Application granted.
Subsequent proceedings:
A subsequent and similar decision given by the Nice Administrative Tribunal on 22 January 2018 (no. 1800195) concerned a 12 year old child who, after having arrived to France from Italy, was immediately given an order refusing his stay and was returned to the Italian city of Ventimiglia. The Tribunal held that the refusal of entry and return decisions given to the child must be in compliance with particular guarantees, namely that the child's best interests is a primary consideration when decisions, which affect that child, are taken. Amongst the obligation to respect the rights and fundamental liberties of the child where the unaccompanied child irregularly enters the territory, is that the administrative authority immediately notifies the public prosecutor who shall immediately appoint an ad hoc representative. This was not undertaken by the authorities, who similarly did not examine the conditions which the child would find himself in in Ventimiglia. Therefore, the authorities had not proceeded with due diligence when compiling the necessary information before the child was returned. The refusal of entry order was thus manifestly unlawful. The Alpes-Maritimes prefect is obliged to contact the Italian authorities so that the child is able to present himself at the Menton border post. There he is to be immediately given a representative and receive information on his rights and obligations in a language that he understands.
Observations/comments:
This case summary was written by Claire Lavrut, Law student at International University College of Turin.