France - Nice Administrative Tribunal, 31 march 2017, No 1701211

Country of Decision:
Country of Applicant:
Date of Decision:
31-03-2017
Citation:
Mme Salam & M. Daniel v préfet des Alpes-Maritimes, Administrative Court of Nice, 2017, No 1701211
Court Name:
Nice Administrative Tribunal (M. Sabroux)
National / Other Legislative Provisions:
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law) Art L. 741-1
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law) Art L. 741 4
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law) Art R. 741-1
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law) Art L. 744-1
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law) Art R. 741-2
France - law no. 91-647 of 10 July 1991 - Art 37
France - law no. 91-647 of 10 July 1991 - Art 20
France - Administrative Justice Code Art - L.761-1
France - Administrative Justice Code Art - L.521-2
France - Administrative Justice Code Art - L522-1
France - Administrative Justice Code Art - R.522-1
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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. 

For further similar case law on this topic please see Nice Administrative Tribunal, 1 September 2017, n°1703443 where the Tribunal held that the applicant was unlawfully prevented from making an asylum application in France, and has such his right of asylum has been manifestly violated. 
Observations/Comments: 

This case summary was written by Claire Lavrut, Law student at International University College of Turin.