France - Paris Administrative Tribunal, 1811611/9 , 6 July 2018
| Country of Decision: | France |
| Country of applicant: | Afghanistan |
| Court name: | Paris Administrative Tribunal |
| Date of decision: | 06-07-2018 |
| Citation: | 1811611/9 |
Keywords:
| Keywords |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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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:
Following on from a Rule 39 measure from the European Court of Human Rights preventing the transfer of the applicant to Bulgaria under the Dublin Regulation, the Tribunal ordered the police prefect to register the applicant's claim for asylum in France.
Facts:
The applicant is an Afghan national who made an asylum application in France on 14 September 2017. This was later followed by a take-back request from the French authorities to the Bulgarian authorities, which was accepted by the latter on 28 September 2017. The French police prefect subsequently ordered the transfer. The applicant later refused to board the flight to Sofia and several months later was placed in administrative detention. The applicant requested his application for asylum to be registered in France and his release from administrative detention to be ordered by the “juge des référés”.
Decision & reasoning:
The Tribunal first notes the legislative provisions under the Dublin Regulation relating to the time limits to transfer an applicant to the responsible Member State for the applicant’s asylum application along with the CJEU’s judgment in CK and Others which states that an applicant may not be transferred to a responsible Member State under Dublin if such a transfer would lead to a real risk of inhuman or degrading treatment. As such, the Tribunal states that the applicant, whilst in Bulgaria, was deprived of his liberty and health care during three months and was beaten. These statements were substantiated by photos and had not been denied by the French national authorities. Moreover, the Tribunal notes that the refusal to board a plane to Sofia cannot constitute proof that the applicant intentionally and systematically evaded the execution of the transfer order. Thus, by refusing to register the asylum application the police prefect seriously and manifestly violated the fundamental freedom constituted by the constitutional right of asylum and its corollary, the right to seek refugee status.
Outcome:
The Tribunal orders the police prefect to register the applicant’s asylum application within 10 days from the notification of the decision.
Subsequent proceedings:
This case follows a successful Rule 39 application to the European Court of Human Rights which suspended the applicant’s transfer to Bulgaria (G.K. v. France). A second Rule 39 application, similarly relating to an Afghan national facing a transfer to Bulgaria under the Dublin Regulation, was also granted by the European Court of Human Rights (S.H. v France, Application 31442/18). The Court specifically asks the Government whether the applicant faces an Article 3 ECHR violation if returned to Bulgaria in light of the recent reports from the CPT and Special Representative of the Secretary General on migration and refugees on the treatment of asylum seekers in Bulgaria.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-578/16 PPU, C.K. and others |
| CJEU - Case C 201/16, Shiri, 25 October 2017 |