- Number of outgoing requests in 2013: 5,903 in 2013
- Number of incoming requests in 2013: 3,426 in 2013
- Number of outgoing transfers carried out effectively in 2013: 645 persons (out of 3,919 agreed requests in 2013)
- Number of incoming transfers carried out effectively in 2013: 834 persons in 2013
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.
When they go to the prefecture to apply for asylum,1 all applicants are given an information leaflet on the Dublin procedure at the desks (leaflet A, produced by the EU and translated into several languages)2 together with the general guide for asylum seekers (also translated into several languages) and a form to submit a temporary residence permit request as asylum seekers (“demande d’admission au séjour au titre de l’asile”).
A date for a future appointment is set in order to complete the request for a temporary residence permit. At this meeting (which can take place several weeks later), fingerprints are taken3 and the above-mentioned form is completed. It contains a part entitled “personal interview” which contains information enabling the prefecture to determine the responsible State. The prefecture then decides either to deliver a temporary residence permit (therefore to channel the applicant into the regular procedure), or to channel the applicant into the accelerated procedure, or to channel the applicant into the Dublin procedure. In this case, the applicant receives a second information leaflet on the Dublin procedure (leaflet B, produced by the EU and translated into several languages)4 and a Dublin notice document “convocation Dublin” issued by the prefecture. The applicant does not always get a copy of the interview form. Since November 2014, the prefecture has asked the applicant to sign a letter written in French and listing all the information given (as requested under Article 4 of the Dublin II Regulation) and in which language.
The presence of an interpreter at that stage is not guaranteed and practice varies widely depending on the prefectures (e.g. in Nice or in Clermont-Ferrand, an interpreter is called to translate the written information when the applicant does not speak French). The applicant must go to the prefecture every month with his or her Dublin notice document.
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) always takes precedence over the application of the other criteria. According to a circular of 1 April 2011,5 the taking of fingerprints will be decisive in the search for the most likely responsible State.
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 either about the country which was contacted or 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 his or her application is contacted and sometimes does not know the date of the requested Member State’s reply either. Asylum seekers under 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 before which the transfer must take place.
It is difficult to know how the sovereignty clause is applied because prefectures sometimes simply deliver a temporary residence permit (which enables the asylum seeker to lodge a regular application for asylum) after having channelled the asylum seeker under the Dublin procedure, without explaining why and without mentioning whether it is under one clause or the other.6 In Paris, the humanitarian clause seemed to be 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, an asylum seeker who was ill was transferred to Poland whilst his wife had applied for asylum in France.
When a Member State agrees 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 result in immediate administrative detention.
Finally with regard 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 had been carried out in practice (a 16.45% transfer rate) in 2013.7
Recent jurisprudence from the Council of State8 is interesting with regards to the notion of absconding which allows Member States to extend the time limit for the enforcement 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, the prefecture had sent only one summons to M. and M. had presented himself at the prefecture and had answered the prefect’s letter by explaining that he did not have a stable housing, so the Council of State found that M. could not 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 Council of State concluded 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).9 Asylum seekers under the Dublin procedure who do not benefit from stable housing receive a first letter from the prefecture. If they come to the prefecture, they are placed under house arrest. If not, they receive a second letter from the prefecture informing them that the transfer delay may be extended to 18 months. It is therefore only after two refusals to come to the prefecture that the asylum seeker is considered as absconding.
Concerning access to the asylum procedure upon return to France under the Dublin Regulation (incoming transfers), 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).
The system for appeals against decisions taken during a Dublin procedure is quite different from the possible appeal in the regular procedure.10
Two types of appeals are available:
- As for any administrative decision, an informal administrative appeal (recours gracieux)11 can be lodged before the prefect.;
- Court appeal: the asylum seeker may file an appeal before the administrative court within two months. Several decisions can be challenged by the asylum seeker. 1) The decision by which the prefecture refuses to deliver a temporary residence permit because the responsible State has agreed to take charge of him or her; 2) The decision of transfer. In such cases, legal aid may be granted but the appeal does not currently carry a suspensive effect; 3) The decision to place the asylum seeker under house arrest (the asylum seeker has 48 hours to appeal; the judge has to take a decision within 72 hours; this appeal has suspensive effect).
In addition, the appeal for interim measures in order to suspend an administrative decision (référé suspension)12 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.
Asylum seekers under the Dublin procedure are not eligible for a temporary residence permit like other asylum seekers.13 They do not benefit from an examination of their application for asylum by OFPRA and therefore they do not have a personal 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.
As explained above, there is no specific interview’in the Dublin procedure in France. All asylum seekers fill in a form during an appointment at the prefecture to apply for a temporary residence permit.14 The temporary residence permit form includes a part entitled “personal interview” which contains information enabling the prefecture to determine the State responsible for protection (in conformity with Annex I of the Commission Implementing regulation).15 During this appointment, which takes place at the desk in prefectures (therefore not in offices guaranteeing confidentiality), questions are asked about civil status, family of the applicant, modalities of entry into French territory, countries through which the applicant possibly travelled prior to their asylum application, etc. Applicants have the possibility to mention the presence of family members residing in another Member State. This part of the form is written in French and in English. It must be filled in by the applicant in French, during the interview. The presence of an interpreter during this appointment can vary; translation into the applicant’s language is often done by a compatriot. Those appointments are not recorded. The asylum applicant does not always receive a copy of the interview form. If the prefecture decides to channel the applicant into the Dublin procedure, he or she receives an information leaflet on the Dublin procedure (Leaflet B, produced by the EU and translated into several languages).16 Since November 2014, the prefecture has asked the applicant to sign a letter written in French and listing all the information given (as requested under Article 4 of the Dublin II Regulation) and in which language.
Apart from cases where applicants under a Dublin procedure have access to reception facilities through the emergency scheme, usually they only have access to the legal assistance provided by the orientation platforms.17
Access to legal aid can be obtained upon conditions of low income. 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.
As a consequence of the European Court on Human Rights ruling of 21 January 2011 in MSS v Belgium and Greece, the Ministry of Interior has asked the prefects to stop, on a temporary basis and awaiting further instructions, transfers towards Greece in a telegram dated 14 March 2011. Consequently, prefectures must apply the sovereignty clause of the Dublin Regulation and therefore declare France as the responsible State for examining the asylum application.18 As a general rule, applicants who should have been transferred to Greece according to the Dublin Regulation have 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 (there are cases where Hungary was found to match one of the responsibility criteria for instance).
In addition, several times in 2013, French administrative courts suspended the transfer of asylum seekers under the Dublin regulation to Hungary. The Council of State 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”.19 However Dublin transfers to Hungary are far from being systematically suspended.
- 1. The Dublin procedure can vary greatly from one prefecture to the other over France and, even in the same prefecture, practice can vary over time and depending on the cases. The procedure which is described in this section is the current practice in the Rhône département.
- 2. Leaflet A entitled “I have asked for asylum in the EU – Which country will handle my claim?” © EU 2014.
- 3. 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 whose fingerprints are unfit for identification (i.e. unreadable). In this case, asylum seekers will be summoned again within a month and then they will be channelled into the accelerated procedure if their fingerprints are still unfit for identification (as foreseen in the circular IMIA1000106C of 2 April 2010 and confirmed by Council of State jurisprudence n°347187 of the 8 March 2011).
- 4. Leaflet B entitled “I am in the Dublin procedure – What does this mean?” © EU 2014.
- 5. 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).
- 6. European network for technical cooperation on the application of the Dublin II Regulation, French report, December 2012, p35-37.
- 7. Eurostat statistics accessed on on 5 May 2014.
- 8. Council of State, Ministry of Interior vs. M., n°377738, 24 April 2014.
- 9. 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.
- 10. See additional information in the French report of the European network for technical cooperation on the application of the Dublin II regulation .
- 11. This is a discretionary remedy.
- 12. Article L.521-1 of the code of administrative justice.
- 13. Article L.741-4 1° and L.723-1 of the Ceseda.
- 14. Scheduled in theory within 15 calendar days after the asylum seekers have voiced their request to be admitted on the territory on the ground of an asylum claim, but not currently respected in practice.
- 15. Commission Implementing regulation N°118/2014 of 30 January 2014.
- 16. Leaflet B entitled “I am under the Dublin procedure – What does it mean?” © EU 2014.
- 17. For example, in Lyon, the platform managed by Forum réfugiés-Cosi provided legal support to 200 persons under the Dublin procedure in 2014.
- 18. 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).
- 19. Council of State, Case n°372677, 16 October 2013