Dublin

France

Author

Forum Réfugiés - Cosi

 

General

  • Number of outgoing requests in 2013:  5 903 
  • Number of incoming requests  in 2013: 3 426
  • Number of outgoing transfers carried out effectively  in 2013: 645 persons
  • Number of incoming transfers carried out effectively  in 2013: 834 persons 

 

Procedure

The Dublin procedure is applied to all asylum seekers above 14 years old without exception (as per the Regulation). The official policy of the French Dublin unit is that it does not transfer unaccompanied children under the Dublin Regulation. Unaccompanied children can however be placed under a Dublin procedure by prefectures. 

During the application process, the officers in prefectures are requested to take fingerprints for each and every asylum seeker above 14 years old and they have a duty to check these fingerprints in the EURODAC system. An exception is made for asylum seekers who have fingerprints that are said to be unfit for identification (i.e. unreadable). In this case, asylum seekers will be summoned again within a month and then they will be placed in an accelerated procedure if their fingerprints are still unfit for identification.1

In practice, the elements taken into account to determine the state responsible can vary from one prefecture to another but it has been observed that the taking of fingerprints (and therefore the identification of another responsible state) is always taking precedence over the application of the other criteria. This is actually stated in the circular of 1st April 2011:2 the taking of fingerprints will be decisive in the search of the most likely responsible state. 

Some information on the Dublin procedure is given at the desks in prefectures. The presence of interpreter at that stage is not guaranteed and practice varies widely depending on the prefectures (e.g. in Nice, an interpreter is called to translate the written information when the applicant does not speak French). The impact of the guarantees included in the Dublin III regulation in that regard still remains to be seen in France.

In the Rhône department, the applicant is informed that a take back or a taking charge procedure has been initiated through the information written at the back of his Dublin notice document (information translated in the applicant’s language). However, there is not necessarily information neither about the country which was contacted nor on the criteria leading to this referral. 

The asylum seeker is not necessarily informed about the date when the country determined to be responsible for their application is contacted and sometimes does not know the date of the requested Member State’s response either. Asylum seekers subjected to the Dublin procedure are formally informed about these dates through the notification of readmission order letter delivered to them once the decision to “take charge” or “take back” has been made. In Lyon, this decision is generally explained and indicates the deadline until when the transfer must take place.

It is difficult to know how the sovereignty clause is applied partly because the prefectures simply allow the asylum seeker to lodge a regular application for asylum, without having to explain why and without mentioning whether it is under one clause or the other.3 In Paris, it seems that the humanitarian clause was used for asylum seekers who were deemed not fit for travel and for whom no transfer could be carried out. These clauses are not widely used in any case in France. For example, in the prefecture of Nice there has been a case where an asylum seeker who was ill was transferred to Poland whilst his wife had applied for asylum in France. 

When a Member State has agreed to take charge of an asylum seeker, 3 transfer modalities are available:

  • Voluntary transfer initiated by the applicant themselves. A laissez-passer is provided as well as a meeting point in the host country
  • Controlled transfer : the applicant is accompanied by police forces up until the boarding of the plane
  • Transfer under escort: the applicant is accompanied by police forces up until the transfer to the authorities of the responsible state.

The modalities put in place to arrange transfers can vary from one prefecture to another. In the Rhône department, a refusal of voluntary transfer (refusal to accept the transfer upon notification) does not necessarily results in immediate administrative detention.

Finally with regards to transfers, it should be noted that the rate of actual implementation of transfers is strikingly low. Whereas the French authorities had received 3,919 agreements from other Member States to take charge or take back asylum seekers under the Dublin procedure in France, only 645 transfers have been carried out in practice (a 16.45% transfer rate) in 2013.4

A recent jurisprudence from the Council of State5 is interesting with regards to the notion of absconding allowing Member States to extend the time limit for the execution of the transfer to a maximum of 18 months if the person concerned absconds (article 29.2 of the Dublin III regulation). In that case, considering that the prefecture had sent only one summon to M. and that M. had presented himself at the prefecture and had answered the prefect’s letter by explaining that he did not have a stable housing, the Council of State has stated that M. cannot be considered as having systematically and intentionally escaped from the implementation of his return measure. The extension of the transfer period to 18 months was therefore unjustified, and the Court consequently stated that the Administrative Court of Lyon had lawfully ordered the Prefect to provide M. with a temporary residence permit with a view to lodge his asylum claim in France. This is important as statistics have shown an increase in the trend of resorting to such extensions (cases of transfer deadline extension represented 15% of Dublin cases in 2008 and 41% of the cases in 2013).6

Concerning access to the asylum procedure upon return to France under the Dublin Regulation, these applications are treated in the same way as any other asylum applications. If the asylum seeker comes from a safe country of origin then their application is examined under the accelerated procedure.

If the asylum application has already received a final negative decision from the National Asylum Court (CNDA), the asylum seeker may apply to OFPRA for a re-examination only if they possess new evidence (see section on subsequent application).

 

Appeal

The system for appeals against decisions taken during a Dublin procedure is quite different from the possible appeal in the regular procedure.7

Two types of appeals are available:

An informal administrative appeal (recours gracieux) can be lodged at the prefecture against the decision of placement in the Dublin procedure. Applicants receive a written reasoned response within four months. Appeals have succeeded when it was possible to identify the presence in France of family members who reside there legally or when elements of proof of a stay out of the European Union for 3 months can be provided. Actually, these appeals succeed for situations in which a Dublin procedure should not have been started in the first place (absence from the territory of the EU for more than 3 months)
Court appeals: If the asylum seeker does not agree with the transfer decision, he may file a regular appeal against it before the administrative court within two months. In such cases, the jurisdictional allowance may be granted but the appeal does not carry a suspensive effect.

In addition, the appeal for interim measures in order to suspend an administrative decision (référé suspension)8 enables the suspension of a transfer order in the event of an emergency and where there is serious doubt about the legality of the decision. According to French case law, a situation of emergency is generally granted when the claimant is actually detained in an administrative detention centre. Although processed relatively rapidly, appeals for interim measures do not have a suspensive effect during the examination of the claim.

We have little information on the outcome of the appeals before the administrative court since the applicants under Dublin procedure are not accommodated in reception centres any longer after their initial departure date. It seems that transfer suspensions are rarely implemented, apart for cases that fall under the European Court on Human Rights or Council of State jurisprudence (as in the case of transfers to Greece for instance).

 

Personal interview

Asylum seekers under the Dublin procedure are not eligible for a temporary residence permit like the other asylum seekers.9 They do not benefit from an examination of their application for asylum by OFPRA and therefore they do not have an interview on the substance of their application for asylum in France in the framework of this procedure. The merit of their asylum claim will be examined if France is designated as the responsible State at the end of the process. 

There is no ‘interview” as such in the Dublin procedure in France. The claimants fill in a form (Dublinet or residence permit form) during an appointment at the prefecture to apply for a residence permit based on their submission of an asylum application.10  Most of the time, NGOs do not attend those appointments so it is hard to know the details of its proceedings.    

During the appointment at the prefecture to apply for a residence permit on the ground of an asylum application, the ‘interview’ consists of the filling of a form by the claimants (Dublinet or residence permit form). Most of the time, NGOs do not attend those ‘interviews’ so it is hard to know the details of its proceedings. During this appointment, questions are asked about civil status, family of the applicant, modalities of entry into the French territory, countries through which the applicant possibly travelled prior to their asylum application, etc. This is when the applicants have the possibility to mention the presence of family members residing in another member state. These questions are asked by the officers at the desks in prefecture. All asylum seekers are affected by this process. The form is written in French and in English. It must be filled by the applicant in French, during the interview. The presence of an interpreter during this appointment can vary; the translation in the applicant’s language is often done by a compatriot. Those appointments are not recorded. There is no transcript of the meeting.

In Lyon in March 2014, interviews still took place at the common desk of the prefecture (i.e. not in an office guaranteeing the confidentiality).

The form to apply for a residence permit has been adapted to match the standard form for determining the Member State responsible for examining an application for international protection (Annex I of the Commission Implementing regulation).11 Henceforth, it includes a section for the summary of the interview but practice so far has shown that this document is not handed over to the applicant. In March 2014, the common brochure of information imposed by the implementing regulation (Annex X) was still not handed over to applicants in prefectures

 

Legal assistance

Apart from cases where applicants under a Dublin procedure have access to reception facilities through the emergency scheme, they only have access to the legal assistance provided by the orientation platforms.

Access to legal aid can be obtained after the notification for transfer towards the responsible member state has been issued (upon conditions of low income).  The applicants must request this allowance at the office for legal aid of the relevant administrative court (Tribunal administratif). This office can ask for further information and a short account of the legal and de facto reasons why the asylum seeker thinks the contested decision is unlawful or unfounded and may, for instance, lead to a violation of their fundamental rights. Access to legal aid can be refused if the arguments are deemed unfounded. 

 

Suspension of transfers

As a consequence of the European Court on Human Rights MSS vs. Belgium and Greece ruling of 21 January 2011, the Ministry of Interior has asked the Prefects to stop, on a temporary basis and awaiting further instructions, transfers towards Greece by a telegram dated 14 March 2011. Consequently, prefectures must apply the sovereignty clause of the Dublin Regulation and therefore declare France responsible for examining the asylum application.12 As a general rule, applicants who should have been transferred to Greece according to the Dublin Regulation have a direct access to a temporary residence permit with a view to lodge their application for asylum in France. It happens sometimes however that the prefecture looks for another Member State which could be the next one responsible for the applicant (cases where Hungary was found to match one of the responsibility criteria for instance).

In addition, several times in 2013, the French administrative courts have suspended the transfer of asylum seekers under the Dublin regulation to Hungary. The Council of State has confirmed on 16 October 2013 an administrative court decision to suspend the transfer of a Mauritanian asylum seeker to Hungary, arguing that “bearing in mind the treatment this person had received during his detention at the Debrecen centre, there was a serious risk that his asylum application would not be examined by the Hungarian authorities in a way complying with the safeguards required by the respect for the right to asylum”.13

  • 1. Foreseen in the circular IMIA1000106C of 2 April 2010 and confirmed by Council of State jurisprudence n°347187 of the 8 march 2011.
  • 2. Circulaire du 1er avril 2011 n° NOR IOCL1107084C, Application du règlement CE n°343/2003 du Conseil du 18 février 2003 dit “règlement Dublin“. Mise en oeuvre des procédures d’examen prioritaire de certaines demandes d’asile mentionnées à l’article L.741-4 du CESEDA (Circular of 1st April 2011 on the application of Council; Regulation 343/2003, the so-called ‘Dublin regulation’. Implementation of accelerated procedures of some asylum claims mentioned in art L741-4 CESEDA).
  • 3. European network for technical cooperation on the application of the Dublin II regulation, French report, p35-37, available at www.dublin-project.eu/dublin/content/download/6350/77202/version/2/file/....
  • 4. Eurostat statistics accessed on on 5 May 2014.
  • 5. Council of State, Ministry of Interior vs M., n°377738, 24 April 2014.
  • 6. National Assembly, Rapport d’information sur l’évaluation de la politique d’accueil des demandeurs d’asile (Information report on the evaluation of the reception conditions offered to asylum seekers), Jeanine Dubié and Arnaud Richard, 10 April 2014, www.assemblee-nationale.fr/14/rap-info/i1879.asp#P1140_178357
  • 7. See additional information in the French report of the European network for technical cooperation on the application of the Dublin II regulation .
  • 8. Article L.521-1 of the code of administrative justice.
  • 9. Article L.741-4 1° and L.723-1 of the Ceseda.
  • 10. Scheduled in theory within 15 calendar days after the asylum seekers has voiced their request to be admitted on the territory on the ground of an asylum claim.
  • 11. Commission Implementing regulation N°118/2014 of 30 January 2014
  • 12. Circulaire du 1er avril 2011 n° NOR IOCL1107084C, Application du règlement CE n°343/2003 du Conseil du 18 février 2003 dit “règlement Dublin“ (Circular of 1st April 2011 on the application of the Dublin Regulation).
  • 13. Council of State, Case n°372677, 16 October 2013, http://arianeinternet.conseil-etat.fr/arianeinternet/getdoc.asp?id=19873...

About AIDA

The Asylum Information Database (AIDA) is a project of the European Council on Refugees and Exiles (ECRE), in partnership with Forum Refugiés-Cosi, the Hungarian Helsinki Committee and the Irish Refugee Council.