France - Council of State, 4 March 2015, M. A. against Préfet de la Haute-Garonne, No. 388180

Country of Decision:
Country of Applicant:
Date of Decision:
04-03-2015
Citation:
CE, 4 March 2015, M. A. against Préfet de la Haute-Garonne, No. 388180
Court Name:
Council of State
National / Other Legislative Provisions:
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.512-1-1
France - Constitution
France - Code of Administrative Justice Article L.521-2
France - Code of Administrative Justice L.761-1
France - law no. 91-647 of 10 July 1991
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Headnote: 

The Applicant appealed a decision ordering his transfer to another Member State responsible for examining his application for international protection because the six-month period during which his transfer had to be carried out in accordance with Regulation (EU) no. 604/2013 known as “Dublin III” (the “Dublin III Regulation”) had expired. 

The Council of State denied the appeal holding that the six-month period was interrupted by the legal action against the transfer measure but had not restarted because the appeal was still pending when the Préfet issued the Dublin III summons to the Applicant.

Facts: 

The Applicant, a Guinean national, entered France in March 2014 and applied for asylum in the prefecture of Haute-Garonne. The Applicant had already been subject to an identity check in Spain on 28 November 2013. Therefore, the Préfet (the State representative at the local level) requested that the Applicant be transferred to Spain to have his application examined pursuant to the Dublin III Regulation.

On 4 June 2014, the Préfet obtained the consent of the Spanish authorities for such transfer. For this reason, on 17 June 2014, the Préfet denied the Applicant’s French asylum application. On 28 October 2014, the Préfet ordered the Applicant’s transfer to the Spanish authorities and placed the Applicant in an administrative detention centre pending such transfer (the “Decision”) .

The Applicant then applied to the administrative court of Toulouse for the cancellation of the Decision on the basis of the procedure established by Article L. 512-1 of the Code for Entry and Residence of Foreigners in France and the Right of Asylum (the “CESEDA procedure”). The CESEDA procedure allows asylum seekers to request the cancellation of decisions placing them in a detention centre and transferring them out of France.

On 30 October 2014, the administrative court of Toulouse annulled the Decision. The Préfet appealed this judgement of the administrative court. Such appeal was pending as of the date on which the Council of State gave its decision.

Following the annulment of the Decision, the Applicant again applied for asylum in the prefecture of Haute-Garonne on 18 December 2014. The Applicant argued that the six-month deadline for transferring [him] to Spain, the Member State in which [he] had filed [his] initial asylum application, under the Dublin III Regulation had expired.

The Préfet refused to grant asylum and issued summons under the Dublin III Regulation (the “Dublin III summons”) on 18 December 2014. The Dublin III summons is a document that allows asylum seekers to remain in France pending their transfer to another EU member state that is renewable at the end of a 15-day period. The Préfet renewed the summons on 29 January and 12 February 2015.

The Applicant filed an urgent legal application (référé-liberté) against the dismissal of his French asylum application. The référé-liberté is a procedure that, in urgent cases, allows the administrative court to order any measures required to safeguard a fundamental freedom that has been seriously and illegally infringed by a public body.

On 13 February 2015, the administrative court of Toulouse dismissed the Applicant’s request.

The Applicant appealed this judgement to the Council of State. The Cimade (an association involved in legal assistance to foreigners) submitted a brief to join this procedure.

Decision & Reasoning: 

A. On the intervention of the Cimade

The Council of State recognised that Cimade had an interest in taking legal action against the Decision and admits its intervention.

B. On the admissibility of the référé-liberté

In accordance with a clear set of jurisprudence, the Council of State stated that the right to seek refugee status is the corollary of the right to asylum, which is a fundamental freedom within the meaning of Article L. 521-2 of the Code of Administrative Justice. The Council therefore granted the Applicant’s urgent legal application appeal.

C. On the date that determines the Member State that is responsible for examining the asylum application

On the basis of Articles 7(2) and 13(1) of the Dublin III Regulation, the Council of State stated that the decision undertaken with regards to the responsible Member States for an asylum application is done at the date of the initial application and takes into account all circumstances prevailing at that date.

Based on this reasoning, the Council of State concluded that Spain was the Member State responsible for examining the asylum application because the applicant had been subject to an identity check in Spain on 28 November 2013, before he sought asylum in France.

D. On the interruption of the six-month period by the CESEDA procedure established by Article L. 512-1 Section III:

The Council of State first referred to Article 29 of the Dublin III Regulation, which provides that the transfer of an asylum seeker to the Member State responsible for examining the asylum application must take place within six months of (i) the acceptance of the request by another Member State to take charge or to take back the person concerned or (ii) the final decision on an appeal or judicial review where there is a suspensive effect in accordance with Article 27(3).

The Council of State then stated that the invocation of an appeal based on Article L. 512-1 Section III of CESEDA has a suspensive effect under Article 27(3) of the Dublin III Regulation with regards to the execution of the return measure for which the decision to place an applicant in administrative detention would have been decided. Further, the Council of State noted that, under the CESEDA procedure, an administrative court has the power to cancel a transfer and the placement of an individual in administrative detention. Therefore, the Council of State concluded that an appeal based on Article L. 512-1 Section III of CESEDA against a transfer order of the asylum applicant to the responsible Member State must be seen as interrupting the six month period foreseen in Article 29 of Dublin III.

The court held that a new six-month period starts to run from the final decision on a CESEDA procedure and not from the acceptance of the request by the Member State to take charge of the person concerned because the six-month period is interrupted by the CESEDA procedure and restarts when there is no longer an obstacle to the implementation of the transfer procedure.

E. On the principles guiding the resumption of the six-month period

The Council of State stated that, if a CESEDA procedure against a transfer measure is dismissed by the court of first instance, the six-month period starts to run from the date of the judgement of the court of first instance since the appeal has no suspensive effect. Thus, a new six-month period begins on the date of the judgement of the court of first instance. If the CESEDA procedure results in the cancellation of the transfer measure, the Council of State distinguished two scenarios: (i) either the Préfet acknowledges such cancellation, in which case  the six-month period  starts from the acceptance of the request by another Member State to take charge of the person concerned, in this case the 4 June 2014; or (ii) the Préfet appeals the decision of cancellation, in which case the six-month period is interrupted and starts from the beginning only if the Court of Appeal overturns the judgement cancelling the transfer and rejects the request of the court of first instance.

Applying this reasoning to the Applicant’s case, the Council of State ruled in favour of the Préfet because the six-month period was interrupted by the legal action against the transfer measure but had not restarted because the appeal was still pending when the Préfet issued the Dublin III summons to the Applicant.

Outcome: 

Appeal denied.

Observations/Comments: 

The Council of State implicitly acknowledged that the case was urgent because the absence of issuance of a temporary residence permit resulted in a precarious situation violating his dignity and physical integrity.

This case summary was written by Linklaters LLP.