France – Lyon Administrative Tribunal, 3 April 2017, No. 1702564

The Court held that the French authorities were responsible for processing the Applicant’s claim. Firstly, the Court held that France was entitled to offer asylum to all foreigners facing persecution for actions in pursuit of freedom, or seeking protection on other grounds. This remains the case where an application:

·         Is not within its immediate obligations under the Dublin III Regulation (Article 17, Regulation 604/2013);

·         Is not within its immediate competence as established in agreements concluded with other States (Article 53-1, French Constitution); or

·         Falls under the competence of another State (Article L. 742-1, Code of Entry and Residence of Foreigners and of the Right of Asylum ('CESEDA’)).

The Court held that Article 3 of the European Convention on Human Rights (‘ECHR’) imposes an obligation on contracting States not to deport an applicant, where doing so would expose him or her to a genuine and serious risk of violence. If appropriate, the Court should evaluate whether there is a situation of generalised violence existing in the country, as under these circumstances, deportation would necessarily entail a violation of Article 3. The European Court of Human Rights (ECtHR) has made clear that the situation of generalised violence needs to be sufficiently serious, such that deportation alone would expose an applicant to a genuine risk; however, where there is a general and well-known risk, Article 3 requires that the authorities evaluate the situation as a matter of duty, as illustrated by decision No. 43611/11 of the Grand Chamber (23 March 2016).

Applying this reasoning to the Applicant’s circumstances, the Court concluded that:

·         Deportation would expose the Applicant to a genuine and serious risk of violence. The province of Nangarhar is currently among the most dangerous in Afghanistan, with internal armed conflict creating an acute situation of generalised violence. A native from Nangarhar would today be demonstrably exposed to a serious, direct and individual threat to life and limb upon returning to Afghanistan. This was confirmed by the National Court of Asylum Law (‘CNDA’) in its decision no. 16036988 of February 2017. Accordingly, it is sufficient for the purposes of Article 3 that the Applicant is able to prove that he comes from Nangarhar. The Applicant’s application and the precise and detailed statements made in court together leave no doubt that this is the case.

The Prefecture had committed a legal error and a manifest error of assessment by not granting the Applicant the benefit of the discretionary clause in Article 17 of the Dublin III Regulation. This was because the Applicant had lodged his claim in France before the Rhône Prefecture ruled that he should be sent back to Norway. Moreover, in so doing, the Prefecture had breached Article 3 of the ECHR.