France - Administrative Tribunal of Nantes, 24 September 2018, M., n°1808677.

However, the Court points out that, without it being a subjective right that can be exercised before the authorities, it is a discretionary power that depends on the State in which the new asylum application was lodged.

Based on the various reports of British and American’s administrations and NGOs on the current internal situation in Somalia, the Tribunal notes that armed conflict between different official and unofficial forces is still ongoing in the central and southern part of the country, including in the capital, Mogadishu, where M. is from. On this information, it appears that the indiscriminate violence due to armed conflicts in Somalia should be a reason why M. can’t be returned in his country; and could be a ground to obtain subsidiary protection.

In view of the order to leave the German territory or face deportation to Somalia and the current situation there, the Court considers that the Prefect of Mayenne has committed a manifest error of assessment. The latter should have assessed the applicant's situation if returned to Somalia, in the light of this information and the possibility resulting from Article 17 of EU Regulation 604/2013 to examine the asylum application on French territory.  The Court states that in this case, if according to the Dublin regulation, the first European country in which the applicant already claimed for international protection was Germany, it doesn’t prevent the French authorities to examine the claim. The French’s administrations could have examined his case based on the personal situation of the applicant who is already submitted to a risk of deportation from Germany to unsafe countries. The Court considers the decision of transfer to the German authorities therefore ungrounded also because not mentioning the “indirect refoulement”.

In addition, the two decrees were not notified to the applicant in a language known to him, depriving him of a full understanding of the procedures involved and of the ability to submit an effective remedy. The decrees may be considered unfounded and insufficiently reasoned according to the Court.

The Court annulled the transfer decisions and ordered the Prefect of Mayenne to issue a certificate of asylum application to M., which is equivalent to a temporary residence permit on French territory during the examination of his asylum application by the OFPRA organism.