France - Administrative tribunal of Toulouse, 9 November 2018, N° 1805185

Country of Decision:
Country of Applicant:
Date of Decision:
09-11-2018
Citation:
(France) Administrative tribunal of Toulouse, 1805185, 9 November 2018
Court Name:
Administrative tribunal of Toulouse
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 47
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 3
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 4
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 5
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 4
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 17
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 20
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 26
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 27
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 35
National / Other Legislative Provisions:
France - Law n° 91-647 of 10 July 1991 on legal aid (Article 20
Article 37 paragraph 2)
France - Code of Administrative Justice (Article L. 761-1)
France - Code of relations between the public and the administration (Article L. 111-2)
France - Code of entry and stay of foreigners and of the right to asylum (Article L. 742-3)
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Headnote: 

As a result of a transfer order to Italian authorities joined with house arrest, the applicant lodged an appeal. She argued she would be at risk of being exposed to inhuman and degrading treatments, as well as to systemic lapses of the Italian asylum system. In this case, the administrative tribunal granted annulment of those orders issued by the prefect of la Haute-Garonne in the light of the current Italian asylum conditions and the reasons motivating the applicant to reach France after having stayed in Italy. 

Facts: 

The applicant, a Nigerian citizen victim of an Italian prostitution network, reached France in order to claim asylum. Following a transfer order to Italian authorities issued by the prefect of la Haute-Garonne, joined with house arrest, she lodged an appeal before the administrative tribunal of Toulouse. She asked for the annulment of those two orders, eligibility to provisional legal aid, as well as enjoining the prefect to put an end to this procedure and deliver an asylum application file. 

Decision & Reasoning: 

-The applicant argues that the transfer order poses a risk of being exposed to inhuman and degrading treatments as well as to systemic deficiencies of the Italian asylum system, disregarding Articles 3.2 and 17.1 of the Dublin regulation (EU) 604/2013 and Articles 3 and 4 of the ECHR.

She also claims that Article 4 of the directive 2013/32/EU on asylum procedures and Articles 5 and 35 of the Dublin regulation aforementioned have not been sufficiently transposed into national law to guarantee the right to effective remedy.

Lastly, the second and fourth pleas are related to procedural violations regarding the identity of the agent conducting her personal interview, the notification of the transfer order, and the justification made by the prefect in relation to the responsible Member State for her asylum claim.

Hence, the applicant consequently argues that the house arrest is deprived of its legal basis.

-The administrative tribunal of Toulouse first reminds of the applicable provisions regarding the designation of a Member State to an asylum claim and its alternatives, under Article L. 742 of the Code of Entry and Stay of Foreigners and the Right to Asylum (CESEDA) and Articles 3 and 17 of the aforementioned Dublin regulation. In this regard, it recalls that it is for the judge to search for a risk of being exposed to inhuman and degrading treatments owing to systemic deficiencies of the asylum system and reception conditions in the initially-designated Member State.

In this case, the tribunal notes that the current situation in Italy poses such risks. Therefore, it concludes that the prefect of la Haute-Garonne made a manifest error of assessment of the applicant’s situation by ordering her transfer to Italian authorities. The tribunal hence considers that there are sufficient grounds to annul those orders without further examination of the remaining pleas. 

Outcome: 

Appeal granted for the annulment of the two aforementioned orders and for the eligibility to provisional legal aid.

The administrative tribunal also orders the prefect of la Haute-Garonne to offer the applicant of the opportunity to seize the French immigration authorities (OFPRA) to submit an asylum application. It also orders the State to pay the sum of 1000€ under Article L. 761-1 of the administrative code of justice and Article 37.2 of the law of 10 July 1991, provided that the applicant is to be definitely eligible to legal aid and that her lawyer waives collection of the aforementioned sum of money. 

Observations/Comments: 

This case summary was written by Celia Minh Boyon, LLM student at Quen Mary University, London. 

Other sources cited: 

Report of August 2016 by the OSAR (Swiss Refugee Aid Organisation)