France – Council of State, 25 November 2003, M. N, No 261913

Country of Decision:
Country of Applicant:
Date of Decision:
No 261913
Court Name:
Council of State (Urgent applications – juge des référes)
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When a transfer under the Dublin Regulation would result in a violation of fundamental rights, the Member State in which the applicant is present can examine the asylum application even though another State should have been responsible under the Dublin Regulation. In this case, the applicant’s wife was allowed to remain in France as she was in the advanced stage of pregnancy and, therefore, transferring the applicant would violate Art 8 ECHR.


The applicants, an Armenian national, and his wife, a Moldavian national, fled to Austria after they had been subjected to severe physical violence because they are a mixed race couple. The wife and daughter arrived in Austria first and submitted an asylum application. However, they then went to France. The husband submitted a separate application in Austria and later joined his wife and daughter in France. While in France, the family filed a joint asylum application.

The Prefecture of Rhône, informed of the family’s previous asylum applications through the Eurodac database, decided to transfer the whole family to Austria. However, at the time of the prefect’s decision the applicant’s wife was close to giving birth to a second child. There were two possible scenarios. The couple could either be separated by allowing the wife to give birth in France while the applicant is sent back to Austria or the wife and the applicant could both be transferred to Austria, with a real risk of miscarriage (based on the wife’s previous medical history).

The husband submitted an appeal for interim measures (référé liberté) requesting that the prefect’s decision to transfer him back to Austria to be quashed and asking for the examination of his asylum claim in France. The Administrative Tribunal of Lyon accepted the request on 4 November 2003, in accordance with Art L.521-2 of the Code of Administrative Justice (Code de justice administrative).

On 19 November 2003, the Minister for the Interior submitted an appeal to the judge in charge of deciding for interim measures at the Council of State. The Minister requested the decision of the Administrative Tribunal to be quashed and the asylum application of the husband to be discontinued.

The husband claimed that his family would not have access to accommodation or necessary medical care in Austria. He argued the provision for emergency situations in Art L.521-2 of the Code of Administrative Justice was not taken into account in the Prefect’s decision. Bearing in mind the advanced stage of pregnancy, as well as the wife’s medical history, the transfer to Austria would expose the family to treatment contrary to the provisions of Art 3 of the ECHR.

Decision & Reasoning: 

The Council of State found that, taking into account the advanced stage of pregnancy, the transfer of the husband to Austria would constitute a violation of Art 8 of the ECHR, which guarantees respect of family life. The fact that the applicant had to choose whether to leave his family to continue his asylum application in Austria or have his application examined in absentia violates his fundamental rights. These rights include respect of family life and the right to have his asylum application examined under basic guarantees. These violations created an emergency situation that justifies that the judge in charge of deciding interim measures (juge des référés) take all the decisions necessary to protect these fundamental rights. The recognition of the violation of fundamental rights by the Prefect’s decision allows France to examine the asylum application even though the Austrian authorities should have been responsible under the Dublin Regulation.


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


The decision extended the respect of family life to unborn children, maintaining the hypothesis that the birth was to be imminent. The jurisprudence of the Council of State recognises a violation of Art 8 of the ECHR when there exist an intrusion in the exercise of the applicant’s private or family life that is disproportionate to the aims of the decision of the concerned administrative entity.

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.