France – Council of State, 13 June 2007, Mr. A v Minister of Immigration, No 306126

Country of Decision:
Country of Applicant:
Date of Decision:
13-06-2007
Citation:
No 306126
Court Name:
Council of State
National / Other Legislative Provisions:
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.741-4-1
France - Code de justice administrative (Code of Administrative Justice) - Art L.521-2
France - Code de justice administrative (Code of Administrative Justice) - Art L.761-1
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Headnote: 

This was an appeal against the decision to deport an asylum applicant to Italy, when his brother had been admitted to the asylum procedure in France. The Council of State found that, under Art 9(2) Dublin Regulation, Italy was the responsible Member State. Art 8 did not apply as the definition of family members in Art 2(i) does not include siblings. Art 15 was not applicable since the applicant could apply for asylum in Italy. Only after Italy has made a decision the application would it be France's responsibility to decide whether to grant permission to enter and reside in France.  

Facts: 

The applicant and his brother fled Algeria following a criminal prosecution during which  they received long prison sentences and had all their assets confiscated. Due to how the procedures had been carried out, they decided to leave Algeria before serving their prison sentences. The applicant’s brother entered France in order to apply for asylum by using a diplomatic visa. The applicant, however, entered France with a visa issued by the Italian authorities and received a negative decision on his application for a temporary residence permit. According to article 9(2) of the Dublin Regulation, Italy should be responsible for examining the applicant’s asylum application.

The applicant made a request to the Administrative Tribunal of Paris for interim measures in order to suspend the decision to deport him to Italy and the decision to place him in detention. The Administrative Tribunal rejected the request and the applicant lodged an appeal to the Council of State. The applicant argued Art 8 and Art 15 of the Dublin Regulation should be applied and that the refusal to apply these articles violated Art 8 of the ECHR.

Decision & Reasoning: 

The Council of State, considering the facts and the law, insisted Art 9(2) of the Dublin Regulation was applicable in this case and that Italy should, in principle, be responsible for examining the asylum application. The Council of State then ruled on the applicability of Art 8 and Art 15 of the Dublin Regulation:

The Prefect was under no obligation to implement Art 8. The presence of the brother did not imply the compulsory implementation of Art 8, as brothers are not included in the definition of family members in article 2(i) of the Dublin Regulation. Furthermore, there was no reason to apply Art 15 in this case as the applicant could have submitted an asylum claim in Italy and this would have offered sufficient guarantee in relation to respecting the requirements for protection under asylum law. The French authorities were under no obligation to apply article 15 of the Dublin Regulation. Only when the Italian authorities have made a decision on the asylum application, will it be the responsibility of the French authorities to decide whether to issue the necessary documentation to allow the applicant entry and residence in France, taking into consideration his personal and family ties to this country. In this case, choosing not to apply Art 15 of the Dublin Regulation did not call into question the applicant’s right to respect for his private and family life. 

Outcome: 

The appeal was rejected and the decision of the Administrative Tribunal was confirmed.

Observations/Comments: 

 


This summary has been reproduced and adapted for inclusion in EDAL with the kind permission of Forum Réfugiés-Cosi, coordinator of Project HOME/2010/ERFX/CA/1721 "European network for technical cooperation on the application of the Dublin II regulation" which received the financial support of the European Refugee Fund.