France - Administrative Court Nantes, 24 July 2015, M. S, No 1506136

Country of Decision:
Country of Applicant:
Date of Decision:
24-07-2015
Citation:
Administrative Court of Nantes, 24 July 2015, M. S, No 1506136
Court Name:
Administrative Court of Nantes
National / Other Legislative Provisions:
France - Code of Administrative Justice) - Art R.776-1
France - Code on the admission and residence of aliens and on the right to asylum - Art L.512-1
France - Code on the admission and residence of aliens and on the right to asylum - Art. L.551-1
France - Code on the admission and residence of aliens and on the right to asylum - Art. L.561-2
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Headnote: 

The court overturned a decision to transfer the Applicant to his first country of asylum, Italy, on the grounds that the Prefect failed to demonstrate that Italy would have given the Applicant the relevant assurances as to appropriate reception conditions.

The court took into account the personal circumstances of the Applicant. The Tribunal found that the Prefect’s arguments were not adapted to the circumstances of the Applicant and were too general to demonstrate that transferring the Applicant to the Italian authorities would not have a substantial impact on the Applicant’s fundamental rights and the right of asylum in accordance with Article 3 of Regulation (EU) no. 604/2013 known as “Dublin III” (the “Dublin III Regulation”)  Dublin III Regulation.

Facts: 

The Applicant left his country of origin due to fear of persecution and crossed the Italian border before arriving  in France irregularly. The Applicant applied for asylum in the Prefecture of Loire-Atlantique. The Prefect declined the application. The Italian authorities failed to respond to a request to take back the Applicant, leading the Prefect of the Loire-Atlantique region to order the Applicant’s transfer to Italy and to issue a compulsory residence order requiring the Applicant to stay in the Loire-Atlantique region for a period of forty-five days.

The Applicant appealed against his transfer to the Italian authorities, the refusal of his temporary residency and the compulsory residence order.

Decision & Reasoning: 

A.      Request to overturn the decision refusing Applicant’s temporary residency

The court stated that Article R. 776-1 of the Code of Administrative Justice allows the Applicant to ask the administrative court to overturn a compulsory residence order within forty-eight hours of being notified of such order. The court further stated that the purpose of this expedited procedure is to ensure a rapid decision is made as to the legality of measures taken in relation to the expulsion of foreigners and not to rule on decisions as to residency. Therefore, the court held that it was not appropriate for the magistrate to hear the conclusions relating to the temporary residence request at this hearing.

The court referred the request to a panel of the court.

  1. Request to overturn the decision to return the Applicant to the Italian authorities and the compulsory residence order

The Applicant claimed that due to the recent delicate and changing situation in Italy regarding asylum seekers and the reception of foreigners, and given the Applicant’s personal situation, the decision to return the Applicant to the Italian authorities would have a substantial impact on the Applicant’s fundamental rights and the right of asylum in accordance with Article 3 of the Dublin III Regulation.

In defence, the Prefect had argued that Italy had a similar number of refugees as France, that Italy had 138 reception centres plus additional first reception centres, that Italy had attributed €700,000,000 to €800,000,000 to the reception of asylum seekers, including EU contributions which were to be increased, that asylum seekers that have not had a response to their application in Italy within 6 months are entitled to work, that the Applicant can benefit from the same health treatment in Italy as he had started to receive in France, and that the Applicant did not raise any concerns at his interview held in Italy.

The court stated that the arguments raised by the Prefect were not specific to the Applicant’s circumstances and were too general. Regarding the Prefect’s argument that  the EU would make increased contributions to the reception of asylum seekers, the Court stated that this was only at the proposal stage. Regarding the European Council’s decision to relocate 40,000 migrants that have arrived in Italy and in Greece, the court stated that the implementation of this decision was likely to take time, whereas the transfer of the Applicant to the Italian authorities was to take place in the coming days. Contrastingly, the court noted that the Prefect did not take into account the recent worsening situation in Italy due to the influx of migrants.

In addition, the court considered the personal circumstances of the Applicant. In particular, the Applicant had contracted the Hepatitis B virus, had previously been received in Italy in an unsanitary camp where he had been given contradictory and erroneous information, and had been admitted for care by the University Hospital of Nantes.

The court further stated that, because Italy did not expressly respond to the request to take charge of the Applicant, there was a serious risk that the Italian authorities would not treat the Applicant’s asylum request in conformity with the safeguards required in order to guarantee the protection of his fundamental rights and the right to asylum.

As a result, the court overturned the decision to transfer the Applicant to the Italian authorities and the compulsory residence order.

Outcome: 

The application to overturn the refusal of the Applicant’s request for temporary residence was referred to a panel of the Administrative Court.

The application to overturn the decision to transfer the applicant to the Italian authorities and to issue the compulsory residence order was granted. 

Observations/Comments: 

This case summary was written by Linklaters LLP.