France – Council of State, 3 June 2005, Mr.A. v Minister of Interior, No 281001

Country of Decision:
Country of Applicant:
Date of Decision:
03-06-2005
Citation:
No 281001
Court Name:
Council of State (Urgent applications – juge des référes)
National / Other Legislative Provisions:
France - Constitution 1958 - Art 53-1
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.741-4
France - Code de justice administrative (Code of Administrative Justice) - Art L.511-2
France - Code de justice administrative (Code of Administrative Justice) - Art L.521-2
France - Code de justice administrative (Code of Administrative Justice) - Art L.523-1
France - Code de justice administrative (Code of Administrative Justice) - Art L.761-1
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Headnote: 

Although the applicant, an adult without children, did not fall within the definition of a family member under Art 2(i) Dublin Regulation and could therefore not rely on Art 7 and Art 8 to defeat a transfer order, his links to family members in France could justify applying Art 3(2) or Art 15. In such a case, the definition of a family member should not be interpreted in the restrictive sense of Art 2(i). In order to apply a broader definition, the applicant must provide evidence of the intensity of the links to the family. In this case, the applicant failed to provide such evidence.

Facts: 

The applicant, a Mongolian national, left Mongolia on 11 October 2004. He passed through Russia and then Austria, where he was arrested and detained for one and a half months. He applied for asylum in Austria and received a negative decision. After being released by Austrian authorities, the applicant went to Italy before entering France on 20 December 2004. Other members of his family (his parents, a sister and a brother) had already applied for asylum and been granted temporary residence permits in France.

The applicant’s application for asylum in France was registered by the OFPRA (Office Français de Protection des Refugiés et Apatrides) on 8 March 2005. On 21 March 2005 the Prefecture of Pyrénées Orientales removed his temporary residence permit in accordance with Art 16 Dublin Regulation and, thereby, allowed for a withdrawal of the OFPRA from the case on 29 March 2005. On 21 April 2005 the Prefect decided to transfer the applicant to Austria in accordance with the Dublin Regulation.

In the meantime, the applicant sent a written request to the Prefect asking for a review of the decision to remove his temporary residence permit. The Prefect refused his request on 27 April 2005 on the ground that Austria is the responsible state. The applicant submitted an appeal for interim measures to the Administrative Tribunal of Montpellier (juge des référés - the latter can only take provisory decisions for urging cases before a proper examination is conducted). He claimed his transfer to Austria, without his asylum application having been examined by the French authorities, would seriously and manifestly violate his right to asylum. This was even more so because his parents, sister and brother had been granted temporary residence permits in France and have applied for asylum. The applicant argued the decision of the Prefect violates articles 3 and 15 of the Dublin Regulation. The tribunal rejected the appeal and the applicant appealed to the Council of State.

Decision & Reasoning: 

The Council of State had to determine whether the prefect had violated the Dublin Regulation by deciding not to examine the asylum application even though the applicant’s parents, brother and sister were asylum applicants in France.

The Council of State noted Art 7 and Art 8 of the Dublin Regulation hold, as a criterion in determining the responsible Member State, the presence of family members of an asylum seeker in a Member State. Nevertheless, the Council of State conclude that, in this case, Art 7 and Art 8 cannot be applied. The applicant is an adult person, celibate and with no children, and therefore does not fall into the definition of a family member in Art 2(i) of the Dublin Regulation.

Although the applicant’s situation does not fall under the scope of Art 7 and Art 8, the French authorities should have taken into account, when making their decision, the derogatory clauses (Art 3(2) and Art 15) and the family links of the applicant with family members present in France. The notion of family should, in this case, be understood not in the strict sense of Art 2(i) of the Dublin Regulation, but in a broader sense. The Council of State concluded that to apply a broader definition of a family member, the applicant must provide evidence of the intensity of his links with the family members present in France. In this case, the applicant did not provide such evidence. 

Outcome: 

The appeal was rejected.

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.