France – Administrative Court of Appeal of Paris, 28 June 2018, N° 18PA00145

Country of Decision:
Country of Applicant:
Date of Decision:
28-06-2018
Citation:
(France) Administrative Court of Appeal of Paris, 18PA00145, 28 June 2018
Court Name:
Administrative Court of Appeal of Paris 4th chamber
National / Other Legislative Provisions:
European Convention on Human Rights - Article 3
Eurodac Regulation (EU) No 603/2013
France Code of the entry and stay of the foreigners and the right to asylum Article L/ 742-6
France - Law 91-647 of 10 July 1991
France - Article L. 761-1 of the Code of Administrative Justice
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Headnote: 

The impossibility to proceed with an asylum applicant’s transfer to another Member State responsible for examining the asylum application  is established once there is a clear and real risk for the interested party to be subject to torture or inhuman or degrading treatments within the meaning of articles 3 of the European Convention on Human Rights (ECHR) and 4 of the Charter of Fundamental Rights of the European Union (CFREU), even in the absence of having serious reasons to believe there are systemic failures in the Member State’s asylum system. 

Facts: 

M.A., Afghan national, arrived in France in March 2017 after having transited through Bulgaria. He applied for international protection and a Eurodac hit indicated his previous presence in Bulgaria. The Police Commissioner requested the Bulgarian authorities to take back the case. After the request was deemed to be accepted by way of implied consent, the Police Commissioner issued a return order against M.A. in November 2017.

Following an appeal lodged by M.A., the Administrative Tribunal of Paris (TA) annulled the order in December 2017. It ruled that M.A. would be at risk of being subject to inhuman or degrading treatment if he were to be transferred to Bulgaria.

The Police Commissioner lodged an appeal against this decision before the Administrative Court of Appeal of Paris (CAA). 

Decision & Reasoning: 

The applicant argues that Bulgaria is presumed to respect the rights of asylum seekers as an EU Member State. He also argues that M.A. has neither established the existence of systemic failures in the Bulgarian asylum system, nor provided evidence of having been subject to inhuman or degrading treatment in Bulgaria. 

The Court first recalls articles 3 of the ECHR and 4 of the CFREU relating to the prohibition of torture or inhuman or degrading treatments.

It also recalls the second paragraph of Article 3 of the Dublin Regulation (UE) 604/2013, relating to the impossibility to transfer an asylum seeker to another Member State in which there are serious reasons to believe systemic failures of the asylum system lead to a risk of being subject to inhuman or degrading treatments, in which case the Member State having first identified the responsible Member State becomes once again responsible for the examination of the application for international protection.

In this regard, the Court refers to the CJEU’s decision of 16 February 2017 (C-578/16 PPU), in which it decided that a transfer could not take place in case of a clear and real risk for the interested party to be subject to inhuman or degrading treatment within the meaning of article 4 of the CFREU, “even in the absence of having serious reasons to believe that systemic failures of the asylum system exist in this Member State”.

The Court observes in this case that M.A. has established through medical reports that he suffered physical abuse and was deprived of his liberty without any access to medical care, while his personal belongings had been confiscated in Bulgaria. It then concluded that M.A. would be at risk of being subject to inhuman or degrading treatment once again if transferred to Bulgaria, without further requiring the existence of systemic failures in the Bulgarian asylum system.

Outcome: 

Appeal rejected. All surveillance measures must come to an end on the grounds of Article L. 742-6 of the code of entry and stay of foreigners and the right to asylum.

The Police Commissioner was ordered to deliver M.A. with a provisional residence permit and to examine his case within 1 month, on the grounds of Article L. 911-2 of the code of administrative justice.

The State was ordered to pay the sum of 1500€ to M.A…’s lawyer, M.A… having been granted judicial aid, on the grounds of articles L. 761-1 of the code of administrative justice and 37 of the law of 10 July 1991, subject to renunciation.

Observations/Comments: