France – Council of State, 2 March 2007, Minister for the Interior v Mr. A., No 302034

Country of Decision:
Country of Applicant:
Date of Decision:
02-03-2007
Citation:
No 302034
Court Name:
Council of State
National / Other Legislative Provisions:
Commission Regulation (EC) No 2625/2000 of 11 December 2000 (EURODAC)
France - Constitution 1958 - Art 53-1
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.741-1
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: 

The presence of an adult asylum applicant’s sibling in an EU Member State entails no obligation for that State to apply Art 7 Dublin Regulation, as siblings are not included in the definition of family members in Art 2(i). This was the case even though the applicant’s brother had been granted refugee status and, subsequently, citizenship in France.

Facts: 

The applicant left Iran for Turkey and then entered Greece, where he resided from April to September 2006 without applying for asylum, according to his statement. The applicant then left Greece in September 2006 and entered France on 2 October 2006. On 3 October he presented himself to the Regional Administration of Haute Garonne and applied for asylum.

The Regional Administration rejected his application for a temporary residence permit in France and initiated Dublin procedures. A transfer request was sent to the Greek authorities on 8 November 2006, in accordance with article 17 Dublin Regulation. The Greek authorities agreed to the transfer on 29 November. France had until 28 May 2007 to proceed with the transfer of the applicant.

The applicant appealed to the Administrative Tribunal. He requested that the Tribunal order the prefect to grant him the right to remain in France for the duration of the examination of his asylum application, based on the family ties he maintained with his elder brother who had obtained refugee status in France in 1998 and who became a French citizen in 2004. The Administrative Tribunal allowed the appeal on 7 February 2007. The Minister of the Interior appealed to the Council of State.

Decision & Reasoning: 

The applicant raised a number of arguments to acknowledge France’s responsibility in the examination of his asylum request:

  • Initially, he alleged a violation of Art 3(4) Dublin Regulation. The Council of State maintained that the applicant had received all obligatory information in a language he understood and therefore did not accept this argument.
  • The applicant then noted the failure to respect the timeframe of the Dublin procedure, set out in Art 17 Dublin Regulation. This argument was not accepted by the Council, which pointed out that the deadlines for the transfer request and for the reply from the requested country had been met, and that the maximum deadline for the transfer of an asylum applicant had not yet been reached at the time of this ruling.
  • The applicant alleged a violation of Art 7 Dublin Regulation. The Council of State held the presence of the applicant’s brother in France did not meet the criteria for applying this article, as siblings are not included in the concept of family as defined in article 2(i) of the Regulation.
  • Finally, the applicant relied on Art 15 of the Dublin Regulation. The Council of State found that, although the prefect had the obligation to consider the application of this article, he was not required to implement it in the case at hand. Moreover, he had until 28 May 2007 to rule on the matter.

As a result, the Council of State limited itself to only rule on the violation of Art 7 of the Dublin Regulation, believing that the presence of a brother (refugee, who was then granted citizenship) entails no obligation to implement this article.

Considering, in third place, that article 7 of the [Dublin]Regulation (EC) n° 343/2003 states that when a family member has been admitted in a member country as a refugee, this country shall be in charge of the asylum request filed by another member of the family, if it is the wish of the concerned individual; that, however, this criteria, which is among those which identify the State responsible for the study of the claim, can only include family members designated in i of article 2 of the said Regulation ; that [the applicant], born in 1984, is an adult, and that his elder brother who was admitted as a refuge in 1998, is not included as a qualifying family member as stated in article 2 ; that the asylum seeker cannot then appeal the prefect’s decision as a violation of article 7 of the Regulation.

Outcome: 

The appeal was allowed and the decision of the Administrative Tribunal was overturned.

Observations/Comments: 

This decision set a precedent and has been reproduced in various instances. For example, in France - Council of State, 13 June 2007, Mr. A v Minister of Immigration, No 306126, where the brother of the asylum applicant was also applying for asylum.


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.